Changes in Jury Selection

Dahl, Fischer & Wilks is excited to share that Kelly Fischer co-authored an article in the February issue of the Colorado Lawyer.  The article discusses a new case that changed the law related to issues in jury selection.

During jury selection, each side has a right to exercise challenges to jurors.  When attorneys use these challenges, the prospective juror is removed or excused from jury service.  There are two types of challenges:  challenges for cause and peremptory challenges.  Challenges for cause are used when a juror has a particular relationship to the case and, by definition, the law says that relationship renders the juror improper to sit on the jury.  For example, if a prospective juror is related to a witness, then that juror would be challenged for cause.

Peremptory challenges are challenges that may be used for nearly any reason (there are a few exceptions).  Each side has a limited number of peremptory challenges.  These challenges are important to the attorneys’ ability to shape the jury that hears the case.  Each side wants to use the challenges to excuse jurors it believes will not “vote” in its favor and try to keep those jurors it thinks will render a favorable verdict.

Sometimes during jury selection, one side might challenge a juror for cause, but the judge does not believe the juror’s relationship to the case renders him or her unfit, not allowing the juror to be stricken for cause.  In this situation, the attorney would have to decide whether to leave the juror on the panel or use a peremptory challenge to remove the juror.  Under the previous law, if the jury convicted the defendant and the trial judge was wrong in its assessment (meaning the juror should have been excused for cause) the appellate court was required to reverse the conviction, granting a new trial.  The Colorado Supreme Court issued a new opinion that changed this automatic reversal rule.  Under the new law, the defense is required to show that the jurors that heard the case were not fair and impartial.  This new law does not require reversal just because the trial judge made a mistake.  Instead, the defense must show that, because of the mistake, a biased juror sat on the jury panel and rendered a verdict in the case.  This is more difficult to prove than simply proving the trial judge made a mistake.