In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury [1]

America has seen racial discrimination in our legal system time and time again. While racial discrimination has infiltrated all facets of the American Criminal Justice System, jury selection outcomes are no exception, and have resulted in unfair and biased verdicts. 

Perhaps most infamously, in 1955, Emmett Till’s murderers walked free thanks to an all-white jury. Emmett Till’s “naked body was found floating in the Tallahatchie River. His head was crushed — he’d been brutally beaten and shot — and he was tied to a 75-pound cotton gin fan with a piece of barbed wire that was wrapped around his neck. A ring on his finger had to be used to help identify him.”[2]

What was his crime for deserving a Southern-style vigilante-justice end? Nothing. At the time a white woman, Carolyn Bryant, testified that Till, a 14 year old black teenager had “touched her hand, grabbed her waist and let out a “wolf whistle” as he left the store.”[3] Despite these allegations, later, in 2004, Carolyn Bryant confessed to author Timothy B. Tyson, that “Till never touched her or said anything suggestive” and said “Nothing that boy did could ever justify what happened to him”[4]

Mamie Bradley, Emmett’s mother, was only able to have his body returned to her in Chicago when she promised to the undertakers she would not look inside, as he was so horribly disfigured. After receiving his body in Chicago, she held an open casket funeral, drawing a crowd of roughly 50,000 people.   

His murderers were Roy Bryant and J.W. Milam, Carolyn Bryant’s husband and his half brother. The jury deliberated for roughly an hour. The deliberation would have been even shorter if they had not ordered lunch. 

 After being found not guilty, the killers then profited from this murder. They were paid around $3,000 (roughly the equivalent of $30,000 today)[5] to give an exclusive tell all to Look Magazine. Protected by double jeopardy, they admitted in full to the brutal murder.[6] Both men are dead now, one in 1980, the other in 1994. Neither was ever held accountable for the brutal murder of Emmett. 

How a Jury is Formed 

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . .”

Impartial: not partial or biased ; treating or affecting all equally.[7]

Jury selection begins with a master list of perspective jurors, which is compiled by the jury commissioner. Today, the master list is typically derived from a variety of sources, which include voter registration lists, phone books, driver license lists. Then a randomized process is used to select a subset of jurors from list, called a venire. Prospective jurors on the venire will then either be called to serve on either a specific case, as in Arizona, or they will be called for an amount of time, as in Ravalli County, Montana. 

After the venire is contacted, prospective jurors will be given a survey to respond to, that will provide a profile of themselves and send it back to the court. These surveys can result in: (1) Disqualification based on something like citizenship status, illiteracy, underage status, or a prior felony conviction; (2) Exemption, usually due to occupation; or (3) Selection. 

Jurors are selected from this process for the jury pool. Members of this jury pool may apply to be excused, sometimes called a hardship exception. Prospective jurors may be excused from serving due to financial hardship, transportation issues, advanced age or health issues. 

Once the selection is narrowed, the jurors enter into the last step – voir dire, which is often called jury selection on a juror’s physical notice. The Court issues a summons to those jurors selected for voir dire.

During voir dire, the perspective jurors are asked questions, by the attorneys, judges, or both depending on the jurisdiction. During this process, the parties use the jurors’ responses to these questions to further narrow the pool to the petite jury. 

Parties may eliminate prospective jurors by issuing two types of challenges, or a request a person be removed from the jury:(1) challenge for cause, and (2) peremptory challenge. 

Attorneys get unlimited challenges for cause. Examples of a for cause challenge would include a juror saying, “I know the defendant, he’s a great man – he didn’t do this.” It may also just be a general bias “Police officers never lie or do anything wrong, this defendant must be guilty.” These prospective jurors are considered to lack impartiality. Each jurisdiction has different rules defining impartiality. Montana’s can be found at MCA § 46-14-115. 

Parties have a limited number of peremptory challenges.. These challenges require no explanation for the juror’s removal. Some people classify these challenges as ‘hunches’ or ‘shots in the dark.’ 

Once each party has exhausted their peremptory challenges and any for cause challenges, the remaining jurors form the petite jury or trial jury. The number of jurors that compose the petite jury range from no fewer than six to twelve jurors in state courts and twelve jurors in federal courts.

It took until 1986 for the Supreme Court to explicitly conclude “Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try.”[8] Batson became a name known by even the general public through numerous legal shows depicting a stunning defense attorney on the right side of justice who exclaims ‘Batson challenge your Honor!” when the dastardly prosecutor has stricken all of the black jurors. 

But rarely do those T.V. shows accurately depict what happens next: the Batson three-step. Step (1) the Defense (the objecting party) must show a Prima Facie case of discriminatory use of peremptory challenges. Step (2) the Prosecutor (the opposing party) must provide race-neutral reason for challenged strikes. Step (3) the Defense has burden of demonstrating intentional discrimination.[9]

– E. J. Bolan & S. T. Bonilla

Coming Next: A look at Today’s Jury makeup, more than 50 years after Batson: have we solved the problem? 

[1] United States Constitutional Amend. VI







[8] Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712, 1718 (1986)


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