Tips & Strategies - The "Struck System" Of Jury Selection

With An Appended Motion By SUSAN O'MALLEY, ESQ.

Judges -- at least during the daytime -- want to run courtrooms, not casinos. Unfortunately, North Carolina's archaic system of jury selection requires as much gambling as Caesar's Palace. Unlike many other jurisdictions, in North Carolina you're forced to gamble by exercising your peremptory challenges before you know anything about the replacements.

This is not jurisprudence. It is draw poker. And in civil cases it is unnecessary.

There are always prospective jurors whose biases will be awful for your client. But will their replacements be worse? Under the current system, you have no way of knowing.

So do you challenge? Pass? Go in the bathroom and throw up? It's Russian roulette. Justice, planning, preparation, intelligence, and fairness to the parties and even to the jurors fly out the window as you spin the barrel and pull the trigger.

The gambling inherent in our system serves no purpose for anyone.

While we're waiting for the legislature to craft a better system, you can try to improve it for your next civil case. You can submit a motion (there's a sample below) for an easy way to eliminate the gambling. Wise judges across the country have not only entertained but ruled in favor of such motions.

The gambling problem of the current system was the subject that came up during my most recent monthly lunch with my good friend Boxer Haynes, Esq., North Carolina's most grizzled trial attorney. Grumbling even more than usual into his beard, he sat to join me.

"Now what?" I asked. He'd just come from voir diring a med mal case against a cardiologist.

"I got rid of a nurse. Her replacement? A physician's husband. I struck the physician's husband. Replacement? A cardiology student. I'm out of strikes. I want the nurse back."

"Could be worse," I said.

"Worse than a cardiology student? How? Putting the defendant on the jury?" He leaned over and said, "This is your fault!"

When Boxer Haynes says something is your fault, you'd better consider carefully how to respond. He did not become the eastern seaboard's most successful plaintiff's attorney by making unfounded accusations. So I said nothing.

"I take it by your silence," he said, reflexively adopting the phraseology of the worst possible voir dire question anyone can ask, "that you agree it's your fault." I long ago convinced him never to say "I take it by your silence" during voir dire, but he still talks like that in real life. Which is why his wife and kids hate him. But better his wife and kids hate him than jurors hate him.

I took a deep breath and asked, "How is it my fault?"

"You're supposed to figure out how to deal with stuff like this."

I pointed out that my only fault was my failure to force him to enter the motion I had told him he ought to enter. "What motion?" he muttered, finishing his sandwich and starting on mine.

I went through it again.

Our current system of jury selection almost guarantees the seating of an unfair jury. By including a strong and inescapable element of chance, it is a statistical near-certainty that one side or the other will get the better shake. This statistical imperative defeats the purpose of jury selection: to assemble a jury that can be as equally fair as possible to both sides. Jurisdictions that understand this have changed systems.

Judges who understand it will entertain motions for changes.

It is counsel's job to help the judge understand what is wrong with the draw-poker gamble of our current system and how to improve the process. The way to improve the process is by using the "Struck System" of jury selection.

The Struck System is used, for example, in Virginia civil cases (Va. Code 8.01-359), South Carolina capital cases, some federal courts, and regularly in many jurisdictions across the country. The Struck System turns blind, irresponsible risk-taking into intelligent, well-informed choosing. It helps everyone in the courtroom, as you'll see below.

In criminal cases, North Carolina judges have no discretion to use the Struck System. But it can be used in civil cases.

Thus, you can move for this improvement without worrying that you'll offend or alienate the judge. And because you can move for this improvement -- at least in civil cases -- you have yourself to blame next time you're faced with the needless risk of being forced to exercise peremptory challenges without knowing anything about the replacements.

Aside from reducing the gamble involved in exercising strikes, the Struck System has other advantages (it even saves time) - and not a single disadvantage for either side.

There is some movement in North Carolina for our archaic selection system to be replaced by the Struck System. Do not wait for the legislature to act. A carefully prepared written motion submitted well in advance of trial can be successful now.

You might even consider having your opponent join the motion.

As Boxer ate the last of my fries, I explained in detail how the system worked. This time, as he eyed my dessert while eating his own, he listened to every word I said:

How The Struck System Works

1. Hardship. In the first step of the Struck System, the judge considers and rules on hardship requests. Thus, no time is wasted by counsel questioning jurors who will later be excused for hardship.

2. Questioning. In the second step of the Struck System, jurors are questioned in groups of 6, 12 or whatever. Each group is questioned first by plaintiff, then defense. Dismissals for cause are completed during or immediately after questioning each group. No peremptory challenges are exercised at this stage.

After plaintiff and defense have questioned the group and dismissals for cause are completed, the remaining prospective jurors in that group are said to be "qualified." Those qualified are sent home and told to return next morning or at whatever time it is estimated enough prospective jurors will have qualified.

"Enough qualified prospective jurors" means the number of jurors to be seated plus the number of available peremptory challenges for both sides. For example, there may be need for 12 seated jurors, 2 alternates, and 18 peremptories (that includes peremptories for alternates). Thus, the questioning of groups of prospective jurors continues until there are 32 qualified.

(12 + 2 + 18 = 32).

3. Exercise Of Peremptory Challenges. For the final step of the Struck System, the clerk draws up a list of the 32 names. Plaintiff crosses off any one name (i.e., peremptorily challenges that name) and hands the list to the defense. Defense crosses off any one name and hands the list back to the plaintiff. Plaintiff and defense continue alternating until all peremptory challenges are exercised.

If a side passes, that side had indicated final acceptance of all remaining jurors. If either side passes with peremptory challenges remaining, more than the necessary number of jurors will remain. The court eliminates the extras by random selection.

Shaping The Motion

A motion for the Struck System should include the following points:

1. The Struck System is widely used in our area: for example, Virginia, many federal courts, Kentucky, South Carolina. Name some respected judges in those jurisdictions who use the Struck System. One such judge, for example, is South Carolina's Ralph King Anderson.

2. The Struck System haws been used in a wide variety of trials. The following are cited in the National Jury Project's United States v. Peterson, 475 F.2d 806 (9th Cir.), United States v. Erickson, 472 F.2d 505 (9th Cir. 1973); Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), Amsler v. United States, 381 F.2d 37 (9th Cir. 1967).

Particularly long, complex trials that used the Struck System: Forro v. IBM, 745 F.2d 1283 (9th Cir. 1984); Berkey Photo v. Eastman Kodak, Civ. No. 73-424 (S.D.N.Y.); United States, et al. v. Pfizer, et al., Civ. No. 471-403 (D. Minn.).

3. The Struck System saves juror time. Once a prospective juror is qualified, he or she need not sit through endless hours of monotonous voir dire while others are interviewed. As each prospective juror is qualified, he or she is sent home and told to return at a predetermined time for the actual selection process -- which takes about ten minutes. Thus, jurors are freshly attentive to begin hearing the case instead of tired and bored from pointlessly sitting through hours of other prospective jurors being questioned in voir dire.

4. The Struck System usually takes less court time than the current system.

5. The Struck System enhances the ability of both sides to exercise strikes intelligently -- because every prospective juror can be evaluated in the context of the entire panel. In this way, the Struck System better fulfills the statutory purpose of voir dire.

6. The Struck System eliminates the "draw poker" blind gamble of being forced to peremptorily challenge a prospective juror before there is any way to gauge whether that juror's replacement is even less capable of being fair.

7. Items 5 and 6 increase public respect for the court system and the jury selection process by visibly making the system fairer and more intelligent, and by eliminating the all-too-obvious need for attorneys to blindly gamble on whether a replacement might be more or less capable of being fair than someone being considered for a peremptory challenge. For the same reasons, the Struck System increase the seated jury's respect for the fairness and rationality of the process that seated them.

8. By the process of alternating challenges, the Struck System diminishes the gamble over whether the opposition will challenge a particular juror. Everyone works from maximum knowledge instead of needless ignorance.

9. North Carolina statues do not control the selection process in civil trials. Mere habit has determined that civil trials will be selected in the same way as criminal trials. Thus, it is within the judge's discretion to adopt the Struck System.

10. Point out something that makes the Struck System particularly appropriate in your specific case. (Don't omit this step: it can be the most persuasive part of a motion.) For example, point out that in a sparsely populated county, the current system gives local counsel an unfair advantage over out-of-town counsel because local counsel more likely knows or can find out about prospective jurors before trial. Under the current system of selection, this unfair advantage allows one side to better gauge the desirability of replacements when considering whether to exercise a peremptory challenge. Under the Struck System, the playing field is leveled.

11. The Struck System allows counsel on both sides to consider the total makeup of the jury.

In summary, the Struck System levels the playing field, eliminates the gamble of the traditional North Carolina system, saves juror time, and allows for the most intelligent possible exercise of peremptory challenges. It is the way to select the fairest jury.

Timeliness

Submit your written motion well in advance. Otherwise, no judge will be comfortable allowing anything as radical as a new selection system.

Boxer Haynes had finished listening to me and finished my dessert as well. He rose to leave, took the check from the waiter and handed it to me, pocketed the motion prepared by Susan O'Malley, Esq. of the Keel Law Offices in Tarboro, North Carolina which is reprinted below, and hastened away.

Here is the motion he took:

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NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

WAKE COUNTY FILE NUMBER 97 CVS 000

)

-------------------, )

Plaintiff, )

) REQUEST FOR

VS. ) STRUCK JURY SYSTEM

)

)

-------------------, )

Defendant. )

Now comes the Plaintiff, prior to the commencement of trial, and moves the court to enter its order allowing the parties of this case to select a jury using the "Struck Jury System." The "Struck Jury System" would better meet the purpose of the voir dire process and save time. Since this trial is likely to take several weeks to complete, it is in the best interest of judicial economy to exercise any option that will lessen the amount of time necessary for this trial. The "Struck Jury System" facilitates jury selection for both parties. It allows both parties to exercise peremptory challenges intelligently and eliminates the element of gambling that exists in the current voir dire system. It saves time for the court, and saves substantial time for all venirepersons whether or not ultimately seated. The regulation and manner in which voir dire is conducted in a civil trial are within the discretion of the trial judge. In re Worrell, 35 N.C. App. 278, 282, disc. rev. denied, 295 N.C. 90 (1978).

Ideally, the voir dire process is intended to impanel an impartial jury. Simmons v. Parkinson, 119 N.C. App. 424 (1995). Voir dire is supposed to eliminate extremes in partiality of the jury through a system of challenges of the prospective jurors, either for cause or peremptorial. State v. Honeycutt, 285 N.C. 174 (1974), In re Worrell, at 282.

The system of civil jury selection conventionally employed in North Carolina impedes the ability of counsel to make intelligent use of peremptory challenges to eliminate extremes of partiality. This is because the comparative extremes of the full venire cannot be determined by interviewing only part of the venire, such as the first twelve. Therefore, peremptory challenges exercised before questioning the full venire contain a substantial element of chance because counsel knows nothing about the replacements that will follow.

Thus, despite counsel's best efforts, the current system of jury selection frequently results in the removal of prospective jurors who, if evaluated in context of the full venire, would not be extremes of partiality. Every attorney has used his or her best judgment in removing individuals, only to discover that the replacements have been more partial. Counsel deserves the opportunity to learn whether upcoming replacements will be more or less partial than individuals being evaluated for removal. Lacking this opportunity, counsel is forced to incorporate gambling into what should be the intelligent exercise of peremptory challenges. Consequently, most juries selected under the current system contain greater extremes of partiality than necessary.

Moreover, the current system treats citizens unfairly. Those first in the box are often removed and thus deprived of the opportunity to serve even though they may be less partial than their replacements who are seated because counsel has had to expend every available peremptory challenge. This is not because counsel has blundered; it is rather the result of a forced gamble which counsel could neither avoid nor predict the result of.

By eliminating that forced gamble, the Struck Jury System better accomplishes the goal of voir dire. The Struck Jury System functions as follows: First, all claims of hardship are dealt with by the court before attorneys begin questioning. This eliminates counsel wasting time on prospective jurors who will simply be excused later for hardship. Next, twelve (12) prospective jurors are bought into the box and each side in turn is given the opportunity to question them. No peremptory challenges are exercised during this phase, but challenges for cause are made and ruled upon as they arise during questioning. Once the entire panel has been questioned in turn by both sides, prospective jurors who have not been removed for cause are considered "qualified" and allowed to leave with instructions to return or to call in at a predetermined time to learn if they have been selected. The next twelve (12) jurors are brought into the box and the process is repeated until there are enough "qualified" for selection. Because challenges for cause have already been dealt with, the "qualified" pool requires no more than twelve prospective jurors plus the number of alternates plus a remaining number sufficient to exhaust all the peremptory challenges available to each party.

Once this qualified pool is established, the clerk provides a list of the qualified names. Plaintiff's counsel exercises a peremptory challenge by removing one name and passing the list to Defense Counsel. Defense counsel, in turn, removes a name and returns the list to Plaintiff's counsel. This process of alternating strikes, which further reduces the gamble of guesswork, continues either until all peremptory challenges have been exhausted or until both sides have passed the remaining pool of jurors. If excess jurors remain on the qualified list, the court randomly selects any remaining twelve (12) jurors and the necessary number of alternates.

The Stuck Jury System of jury selection optimally fulfills the purpose of voir dire. Each side can more intelligently use its peremptory challenges to eliminate the extremes of partiality. Because each side has questioned the entire jury pool, "intelligent gambling" is minimized and neither side can prevail by chance.

In addition, the Struck Jury System saves court time and substantial juror time. Substantial juror time is saved because once a juror is questioned and qualified, he or she can leave with instructions to return or calling at a predetermined time.

The Struck Jury System saves court time as well. When counsel knows the opportunity exists to question the entire pool before removing jurors, less time need be spent questioning venirepersons who seem problematic. Moreoever, rather than having to take several breaks to discuss the use of peremptory challenges, counsel can discuss all peremptory challenges at once and return with all selections. Once the pool has been qualified, selection takes place after just one break and requires only a few minutes.

The Struck Jury System has been used in a number of federal court cases. See e.g., United States v. Peterson, 475 F.2d 806 (9th Cir.), United States v. Erickson, 472 F.2d 505 (9th Cir. 1973); Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), Amsler v. United States, 381 F.2d 37 (9th Cir. 1967). [Add additional cases from nearby or otherwise persuasive jurisdictions. Also, add the names of prominent judges from nearby or otherwise persuasive jurisdictions who have employed the Struck Jury System.]

It is well established that the structuring of voir dire is left largely to the trial judge's discretion. See State v. Denny, 294 N.C. 294 (1978). It is well within the authority of this court to allow the use of the Struck Jury System to impanel an impartial jury. The use of the Struck Jury System will promote the primary purpose of voir dire and be a more efficient use of the court's time. For the above mentioned reasons, the Plaintiff respectfully requests that the court exercise its discretion to permit the use of the Struck Jury System for voir dire.

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