Jury selection is the first stage of any criminal jury trial. Sometimes it is referred to conversationally as jury de-selection. This is because jury selection is a process of questioning far more jurors than the number of jurors that will actually hear the trial, and eliminating jurors one by one until both parties have completed the process.
Challenges for cause are essentially a party’s motion to the court to remove a juror because that juror cannot be fair and impartial for some reason.
The reasons that a juror may not be fair and impartial are vast. Following are several examples of situations where jurors may be unable to be fair and impartial:
- A juror may come to the courtroom with a belief that a defendant is guilty.
- A juror may come to the courtroom believing that all cops lie, or alternatively, that all cops tell the truth.
- A juror may believe that if a defendant doesn’t testify, he or she must be guilty.
- A juror may have been victimized in the past in a manner similar to the crime charged, and may not be able to presume the defendant innocent for that reason.
- A juror may have been convicted of a crime in the criminal justice system in the past and believe that defendants are often railroaded and are not guilty.
The reasons a juror may not be able to be fair, or may be bias, are limitless.
Removing Unfair Jurors
Jurors who cannot afford a defendant the constitutional protections he or she is promised by the United States and Colorado constitutions, and jurors who will not follow the court’s explanation of laws, cannot sit on the jury. When jurors are challenged by attorneys for this reason, a court must determine if the juror is able to be fair and impartial, and if not, the court must excuse the juror from sitting on the jury.
The number of constitutional challenges that may be made are essentially limitless – they are limited only by the responses of the jurors to questioning during jury selection.
Removing Undesirable Jurors
Peremptory challenges are limited. In a felony case in Colorado, each party usually gets six peremptory challenges. If the case is a capital case, each party gets ten peremptory challenges. Additional peremptory challenges are also permitted in cases where more than one defendant is being tried in the same jury trial.
Peremptory challenges are made after the completion of all challenges for cause or unfairness. A party may excuse any juror he or she wishes from the jury, regardless of fairness or impartiality, using a peremptory challenge.
The only limitation is that neither party may remove a juror based upon the race or gender of the juror. Jurors must not face discrimination based on race or gender during the jury selection process.
Each side to the criminal case takes a turn exercising one peremptory challenge, until no more challenges remain.
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