Preserving Objections During Jury Selection: A Roadmap

Last month, the Supreme Court denied certiorari in Missouri Department of Corrections v. Finney in part because the lawyers failed to preserve their objections in jury selection.  It reminded me how easy it can be for good lawyers to flub this really important aspect of their trials.

Jean Finney successfully sued her employer, the Missouri Department of Corrections, for discrimination based on her sexual orientation.  The state appealed, arguing that the trial judge improperly struck some potential jurors “for cause” after they said that their religious upbringing taught them homosexuality is a sin.

Ultimately, the Supreme Court denied the cert petition without issuing an opinion, but Justice Alito issued a “Statement” that he would have granted certiorari on the “stereotypes” question had the lawyers properly preserved their objections.

Jury selection can be messy.  Every jurisdiction has its own, local approach to picking a fair jury, but Finney reminds us of three important features of the process practitioners should know cold before announcing “ready for trial”:

  • Cause Challenges. In voir dire, a lawyer can move to strike jurors “for cause.” This requires showing that there’s something disqualifying about that juror, such as already knowing too many details about the case, knowing one of the parties, stating an obvious prejudice, or demonstrating an inability to serve on the jury (like a health issue or a language barrier).  An appellate court will review a denial of a motion to strike a juror for an “abuse of discretion,” but crucially, and as explained more below, a party must show they were prejudiced by the ruling and must preserve the issue.
  • Peremptory Challenges. Even if a juror is not struck “for cause,” the lawyer still has a limited number of peremptory strikes to remove them from the jury. A lawyer can strike a juror for any reason.  If the opposing party objects and identifies the potential juror as a member of a protected class (race, ethnicity, or sex), then, and only then, must the moving party state their reason for the strike on the record.  Once they state their reason, the judge decides whether the reason is pretextual, that is, a cover for discriminating on the basis of race, ethnicity, or sex.  This process derives from Batson v. Kentucky, 476 U.S. 79 (1986), and applies in civil cases, too, after Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614 (1991).
  • Rehabilitation. In arguing against a “for cause” challenge—that is, when trying to keep someone on the jury—lawyers will sometimes argue that the disqualification was “rehabilitated.” In Missouri DOC v. Finney, for example, the potential jurors who stated they were taught homosexuality is sinful later said that, despite that upbringing, they could “follow the law.”  Courts are supposed to be very weary of rehabilitation, though, because potential jurors may hide their true feelings upon pointed questions by the lawyers and judge.  It’s not hard to imagine a juror promising to “follow the law” when asked by judge, even though they really don’t plan to and are just being agreeable.

For many lawyers, the most complicated part of voir dire (other than, of course, actually getting the jury they want) is preserving objections for appellate review as the Missouri DOC apparently failed to do in Finney.  The key is that the party whose request to strike a juror was denied must be prejudiced by the court’s decision.  Prejudice ensues when someone who should not be on the jury winds up deciding the case and you lose.

Whenever I’m picking a jury, I always review this process for preserving objections to the court’s denial of a cause challenge:

  1. Identify the juror whom you wish to strike, move for cause, and state the reason why.
  2. If your strike is denied, you must then use one of your limited peremptory strikes on that juror and specifically indicate you’re doing so because of the denial of the cause challenge. I say, “Your honor, because you denied my cause challenge on Juror X, I will use a peremptory strike on Juror X.”
  3. You must then exhaust ALL of your remaining peremptory strikes on other jurors.
  4. After exhausting all your peremptory strikes, you must then identify another juror, Juror Y, against whom you wish to use a peremptory strike and ask the court for an additional peremptory for use against Juror Y, specifying, “Your honor, because you denied my cause challenge to Juror X, I used a peremptory against them. Now that I’ve exhausted my peremptory strikes, I’m asking for another peremptory to use against Juror Y.” (This request, too, must be denied, and Juror Y must then sit on the jury).
  5. At the very end of jury selection, the judge will ask the parties if they accept the jury. You can accept the jury, but only “subject all previous motions and objections.”

This process is multi-tiered, requires some quick strategic thinking; and it’s very easy to get wrong.  Jury selection is among the most technically difficult aspects of trial procedure.  But it’s obviously among the most important.  Finney is a strong reminder that practitioners should study process as well as law, have a plan for if (read: when) things go awry, and be ready to preserve objections for review on appeal.

March 11, 2024