Striking Jurors: the Linear vs. Random System
Voir dire is about having the opportunity to examine potential jurors and determine their competency as a prospective juror based on their backgrounds and biases. This process helps attorneys weed out the unfavorable jurors by allowing the attorneys to strike the juror. This calls for attorneys to heavily consider the information provided by the juror and determine whether a strike is necessary or not.
The striking process can lead to a jury that is overall favorable to your case if done carefully. During jury selection, each juror is given a number. Traditionally, striking jurors is done linearly based on the number of the juror. This system allows attorneys to develop a striking strategy easily because you know exactly who the next juror will be. For example, if juror number 4 is the one that you want, you know that they will come after 1-3. With practice, an attorney can get better at creating a striking strategy that leads to a favorable jury more consistently.
The other striking order is a random system. Famously, Judge De La O uses a deck of cards to assign jurors a random order. Therefore, juror number 4 will not come after 1-3, but maybe after 2, or after 5, or even after 16. Although not the traditional system, Judge De La O’s random selection system does create a more fair and just system. The random system takes the attorney’s experience out of play, evening out the possibility a juror would be more favorable to either party. Because an attorney cannot guess whether striking the current juror is more or less favorable to the juror that would follow, attorneys may be more inclined to reserve strikes and accept the juror in front of them—better the devil you know than the devil you don’t. This in turn also helps prevent attorney’s from striking out the entire jury pool for reasons they should have probably not be stricken for.
Below are two picture examples of how a linear system and a random system compare.
Here, the order in which the juror is considered is in order. An attorney will already know who is next and whether that person would be more or less favorable.
The juror’s number here does not indicate what their position in the striking order is. Guessing whether the next juror would be more or less favorable is not practical.
An attorney should always be determining which juror would be beneficial to the case and which one would not. As seen in the picture above, a linear selection system allows an attorney to strategically plan their jurors in a more favorable manner than a random system would because the attorney will immediately know whether the next juror is a favorable one. A linear system further allows attorneys to begin planning their strikes to arrive at the specific juror they would want or even to avoid a juror.
For example, if the jury is going to be 6 jurors, then the jurors should be analyzed 14 people at a time when each party receives 3 peremptory challenge and there are 2 alternate jurors. If no peremptory strikes are used, the first 6 jurors would be the jury. But because 6 jurors can be immediately stricken with the peremptory strikes—without considering for cause challenges—looking at 14 people helps plan ahead in the case any or all of the peremptory strikes are used. Next, as jurors begin to be stricken for cause, attorneys should look to the next juror in line to replace the one that was just stricken. If the striking plan includes striking one of the first 14 jurors for cause, then the attorney should look to juror 15 in case all 6 peremptory strikes are used. A picture example can be seen below:
Because 3 for cause challenges are going to be used (indicated by the cross and “c” designation), jurors up to number 17 should be considered.
This “sliding scale” technique described above of adding jurors as earlier jurors get stricken can be used to start planning strikes to arrive at a later juror that is favorable. For example:
Juror 19 above has been indicated as a favorable juror (designated by the orange circle). In order to make sure juror 19 will be in consideration, another 2 for cause challenges need to be used for juror 19 to fit into the possible 14.
On the other hand, a random system cannot be analyzed in the same way described above. Whereas in a linear system an attorney can plan for cause challenges or peremptory challenges to get to a specific juror or avoid a specific juror, an attorney cannot plan for a specific juror in a random system because there is no way to know if any specific juror would be the next one. This means you cannot guess whether striking the current juror is more or less favorable to the one that is next. One thing to note is that judges may be more lenient in granting for cause challenges in a random system because the attorneys are less likely to be strategizing their strikes to achieve a certain jury.
Both systems have their own pros and cons. Whereas the linear system allows for one to create a game plan for striking and selecting jurors, it creates an opportunity for more experienced attorneys to select better juries for their cases. An attorney’s skills in striking strategy are much less important in a random system, evening out the playing field more, but at the risk of selecting jurors that may not have been the best for either case. Regardless of the system that is chosen, an attorney will always be best served by taking diligent notes, asking the right questions at voir dire, and understanding each prospective juror as best as possible.