16.2 Jury Selection (Voir Dire) & Bench vs. Jury Trials
Key Takeaways
Voir dire is the questioning of prospective jurors (or of a witness) to decide qualification; challenges for cause are unlimited, while peremptory challenges are limited in number.
Federal law gives each side 3 peremptory challenges in civil cases (28 U.S.C. § 1870); in felony cases, FRCrP 24(b) gives the government 6 and the defense 10.
Under Batson v. Kentucky (1986), peremptory challenges may not be used to exclude jurors because of race; J.E.B. v. Alabama (1994) extended the rule to sex.
Transcripts often identify prospective jurors by number rather than name, following the court's practice.
In a bench trial the judge decides the facts; FRCP 52(a) requires the court to find the facts specially and state its conclusions of law separately.
Blueprint topics 40601 and 40602 ask you to describe the reporter's and transcriptionist's role in capturing jury selection (voir dire) and to compare a bench trial with a jury trial.
Voir dire
Voir dire (Law French, roughly "to speak the truth") has two meanings in court:
- Jury voir dire: questioning prospective jurors to decide whether they can serve fairly.
- Witness voir dire: a preliminary examination of a witness about competence or qualifications, such as an expert's credentials, or about whether evidence is admissible. It may be held outside the jury's hearing.
The jury selection process
- A venire (panel) of prospective jurors is brought in.
- The judge, and in many courts the attorneys, question them about bias, knowledge of the case, relationships to parties and hardships.
- The parties make challenges:
- Challenges for cause: unlimited in number; the party must show a reason (bias, a relationship, inability to follow the law). The judge rules.
- Peremptory challenges: no reason needed, but limited in number and subject to constitutional limits.
- The selected jurors (and any alternates) are sworn: (The Jury Is Sworn) under the Guide's standard phrases.
Federal peremptory challenges:
| Case type | Challenges |
|---|---|
| Civil (28 U.S.C. § 1870) | 3 per party (the court may treat multiple parties as one side or allow more) |
| Criminal, capital (FRCrP 24(b)(1)) | 20 per side |
| Criminal, felony (FRCrP 24(b)(2)) | Government 6; defendant(s) jointly 10 |
| Criminal, misdemeanor (FRCrP 24(b)(3)) | 3 per side |
Constitutional limits: Batson v. Kentucky (1986) forbids peremptory strikes based on race; J.E.B. v. Alabama ex rel. T.B. (1994) extended this to sex. A Batson challenge is argued on the record, often at sidebar, with the striking attorney giving a race-neutral reason. That exchange is critical on appeal and must be captured accurately.
The transcriber's role in jury selection
- Is it transcribed? Jury selection is recorded but often not transcribed unless someone orders it, typically when an appeal raises a jury issue. When it is ordered, it is transcribed with the same care as testimony.
- Identifying prospective jurors: many courts identify them by juror number or seat to protect privacy: PROSPECTIVE JUROR NO. 12:, or JUROR NO. 12: once seated. Use names only if the court and client direct.
- Sidebar challenges: challenges are often made at sidebar. On-the-record sidebars are transcribed (Chapter 10), and the parenthetical notes whether all attorneys took part.
- Juror privacy: jurors' personal details (addresses, employers, medical history) may appear. Treat them as confidential and follow any redaction order.
- Index and headers: jury voir dire can be listed in the index under its own heading. Witness voir dire appears in the index in the examination columns (AAERT's sample shows 116 (Voir Dire)) and gets a header such as Tomlinson - Voir Dire, even when held outside the jury's presence (Chapter 9).
Bench trial vs. jury trial
| Bench trial | Jury trial | |
|---|---|---|
| Fact-finder | The judge | The jury; the judge decides the law |
| Right to a jury | Parties may waive it; in federal criminal cases, waiver must be in writing with government consent and court approval (FRCrP 23(a)) | Sixth Amendment (criminal); Seventh Amendment (federal civil suits at common law) |
| Jury selection | None | Voir dire, challenges, jury sworn |
| Jury notations | None | (Jury in/out); presence parentheticals required (Guide § 520.40.20) |
| Instructions | None; the judge applies the law | Charge conference and jury instructions |
| Decision | Findings of fact and conclusions of law, stated separately in civil cases (FRCP 52(a)) | Verdict, possibly with polling |
| Title page | BEFORE THE HONORABLE [NAME], UNITED STATES DISTRICT JUDGE | Adds and a jury (AAERT sample) |
| Evidence rulings | The judge may admit evidence provisionally | More sidebars and more rulings outside the jury's hearing |
Transcript consequences
- The title page must show whether a jury was present (§ 520.43.10(j)).
- In jury trials, headers pause while the jury is out, except for witness voir dire (Chapter 9).
- Bench trials often have longer colloquy: the judge asks witnesses questions directly and discusses the law with counsel in open court.
- A bench trial may end with the judge ruling from the bench, dictating findings on the record. Transcribe them carefully; they are the decision.
A jury selection excerpt
THE COURT: Juror Number 12, you indicated that your
brother is a police officer. Would that affect your ability
to be fair to both sides?
PROSPECTIVE JUROR NO. 12: I don't think so.
THE COURT: Counsel, approach, please.
(At side bar on the record.)
MR. RUIZ: Defense would move to strike Juror 12 for
cause.
THE COURT: Denied. She said she could be fair.
MR. RUIZ: Then we'll exercise a peremptory.
MS. LEE: Your Honor, that's the third African-American
juror the defense has struck. We'd raise a Batson objection.
(End of discussion at side bar.)
Everything at the sidebar here decides whether the jury was lawfully chosen. An appellate court reviewing a Batson claim reads exactly these lines, so the juror numbers, the reasons given and the rulings must be accurate. (Juror identification style follows the court; this example uses numbers.)
Exam traps
- Voir dire is not only for jurors. A witness voir dire on qualifications is indexed and headed as its own examination.
- Challenges for cause have no numeric limit. Only peremptory challenges are limited.
- A bench trial still has witnesses, exhibits and Q and A. Only the jury-related parts drop out.
In a federal felony trial, how many peremptory challenges does FRCrP 24(b) give the defense?
6
3
10 (jointly, if there are several defendants)
20
What did Batson v. Kentucky (1986) prohibit?
Using challenges for cause in criminal cases
Using peremptory challenges to exclude prospective jurors because of race
Questioning jurors outside the presence of the judge
Holding bench trials without the defendant's consent
How does a transcript usually differ for a bench trial compared with a jury trial?
The bench trial transcript has no Q and A format
The bench trial transcript uses state format even in federal court
The bench trial transcript omits the index page
There are no jury-selection proceedings or jury presence notations, and the title page omits "and a jury"
Sections you finish are checked off in the contents.