Attorneys pick jurors through a courtroom process called voir dire: they question a pool of randomly summoned citizens and then remove the ones they don’t want using two tools — challenges for cause, which require a stated reason and a judge’s approval, and peremptory strikes, which don’t require a reason but are limited in number. The goal on each side is to seat jurors likely to view the case favorably. The constitutional constraint is that the final panel has to be impartial, and that attorneys cannot strike jurors on the basis of race or gender.
Voir Dire: The Questioning Phase
Once the panel of prospective jurors is seated in the courtroom, the questioning begins. “Voir dire” means “to speak the truth.”1Legal Information Institute. Voir Dire The judge and the attorneys use this phase to identify anyone who cannot be fair.2U.S. District Court. The Voir Dire Examination
Who does the questioning depends on where the trial is happening. In many federal courts, the judge runs most of it and lets attorneys ask follow-ups. In most state courts, the attorneys handle voir dire themselves, with the judge stepping in as needed. The attorney-led approach gives lawyers more room to build rapport with jurors and probe attitudes at length.
Skilled lawyers mix two kinds of questions. Closed-ended questions surface obvious conflicts fast: Do you know any of the witnesses? Have you or a family member been sued by a company like the defendant? Open-ended questions reveal attitudes: Tell me about a time you felt a company treated you unfairly. Experienced trial lawyers watch the delivery as much as the words. Hesitation, crossed arms, sideways glances at other panelists — those signal something the transcript won’t catch.
Written Questionnaires
In complex or high-profile cases, attorneys often ask the court to send written questionnaires to the panel before oral questioning starts. These cover prior lawsuit experience, exposure to media coverage of the case, and attitudes toward the parties or industries involved. Written responses tend to be more candid than answers given aloud in a crowded courtroom, and they let attorneys focus their limited oral time on the candidates who need deeper probing.
Online Research
Jury selection now extends beyond the courthouse. Attorneys routinely review a prospective juror’s public social media profiles, blog posts, and other online activity. The American Bar Association has said lawyers may look at a juror’s public internet presence unless a court order says otherwise, but they cannot send friend or follow requests, or any other communication that would ask the juror to share non-public information. An automatic notification generated by the platform itself — the kind that tells a user someone viewed their profile — does not count as a prohibited communication from the lawyer. If the attorney comes across evidence that a juror has committed fraud or other misconduct, the attorney is ethically required to report it.3American Bar Association. Formal Opinion 466 – Lawyer Reviewing Jurors Internet Presence
Challenges for Cause
When a juror’s answers reveal a clear reason they can’t be impartial, an attorney can ask the judge to remove that person for cause. The attorney has to identify a specific basis: a personal bias, a financial interest in the outcome, a relationship with a party or witness, prior knowledge of the case, or some other factor that would keep the juror from evaluating the evidence fairly.4Legal Information Institute. Challenge for Cause The judge decides.
There is no limit on how many for-cause challenges each side can raise. If every juror on the panel had a disqualifying conflict, every one of them could be removed. In practice, judges grant these challenges only when the bias is clear. A juror in a medical malpractice case whose husband recently died from a surgical error and who says she doesn’t think she can be objective would almost certainly be excused. A juror who expresses general skepticism of doctors probably won’t be. The judge will often accept that person’s assurance that they can still follow the evidence.
Peremptory Strikes
Peremptory challenges are the sharper tool. A peremptory strike removes a juror without any stated reason. The lawyer might be acting on a gut read, a consultant’s recommendation, or a hunch about how the juror will process the evidence. None of it has to be explained.
The catch is that peremptory strikes are rationed. In federal criminal trials, the number depends on the severity of the charge:
- Felony cases: 10 peremptory strikes for the defense, 6 for the prosecution.
- Misdemeanor cases: 3 for each side.
Extra peremptory strikes are available when the court seats alternate jurors: one additional strike per side for one or two alternates, two more for three or four alternates, and three more for five or six alternates.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
Federal civil trials use a different allocation. Each side gets three peremptory challenges, and the court can grant more when multiple plaintiffs or defendants are involved.6Office of the Law Revision Counsel. 28 USC 1870 – Challenges State courts set their own numbers, and the totals vary considerably by case type and jurisdiction.
How Lawyers Decide Whom to Strike
Because peremptory strikes are scarce, attorneys spend them deliberately. Many trial teams now work with jury consultants who combine demographic analysis, behavioral profiling, and real-time observation during voir dire to recommend which jurors to keep and which to remove. Consultants build juror profiles before trial using questionnaire responses and public records, then flag candidates whose backgrounds or attitudes suggest they’ll lean a particular way. The point is to replace guesswork with something closer to data. No model predicts with certainty how a person will vote in a jury room, but the analysis narrows the guessing.
Constitutional Limits on Peremptory Strikes
Peremptory challenges look unrestricted, but they aren’t. The Supreme Court has ruled that certain reasons for a strike violate the Constitution, even when the lawyer never states them.
The foundational case is Batson v. Kentucky (1986), which held that the Equal Protection Clause forbids prosecutors from striking jurors on account of race.7Legal Information Institute. Batson v Kentucky, 476 US 79 Eight years later, J.E.B. v. Alabama (1994) extended the same protection to gender, with the Court holding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality.”8Legal Information Institute. JEB v Alabama Ex Rel TB, 511 US 127
How a Batson Challenge Works
When one side suspects the other of striking jurors for discriminatory reasons, they raise a Batson challenge. The process moves in three steps. First, the objecting attorney points to facts suggesting a pattern — for example, that the prosecution has used four of its six strikes against Black jurors. Second, the burden shifts to the striking attorney, who must offer a race-neutral or gender-neutral reason for each contested strike. Third, the judge decides whether the stated reason is genuine or a pretext for discrimination. If the judge finds pretext, the strike fails and the juror stays.7Legal Information Institute. Batson v Kentucky, 476 US 79
In practice, Batson challenges succeed less often than the framework suggests. The striking attorney can offer almost any facially neutral reason — the juror seemed inattentive, had an unfavorable employment history, gave vague answers — and trial judges generally have to accept that explanation unless it’s clearly implausible. The Supreme Court reinforced Batson’s principles in Flowers v. Mississippi (2019), where a prosecutor had used peremptory strikes against 41 of 42 Black prospective jurors across six trials of the same defendant. The Court said it was applying existing law, not creating new standards.
State-Level Reforms
Frustration with how Batson works in practice has pushed several states to change their own rules. Washington, California, Connecticut, and New Jersey have adopted frameworks that lower the bar for challenging a suspicious strike. Under these newer rules, the objecting attorney does not have to prove intentional discrimination. Instead, the court asks whether a reasonable, objective observer aware that unconscious and institutional biases affect jury selection would view race or ethnicity as a factor in the strike. These frameworks also identify certain justifications, such as “the juror lives in a high-crime neighborhood,” as presumptively invalid because they have historically served as proxies for race.
Arizona went further. Effective January 1, 2022, the state eliminated peremptory challenges altogether. Attorneys there can now remove jurors only through for-cause challenges, which require a stated reason and judicial approval. Supporters called it the only real way to prevent discrimination in jury selection. Critics argued it strips attorneys of a tool that catches biases too subtle to articulate in open court. Whether other states will follow is unresolved.