The Unconstitutionality of Criminal Jury Selection

19 Pages Posted: 8 Dec 2017 Last revised: 6 Jun 2018

Brittany Deitch

Harvard Law School

Date Written: November 30, 2017

Abstract

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments. The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression. This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection. Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power. After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.

Keywords: criminal procedure, jury trial, jury selection, bill of rights, sixth amendment, criminal defendant, fairness and justice

Suggested Citation

Deitch, Brittany, The Unconstitutionality of Criminal Jury Selection (November 30, 2017). 26 Wm. & Mary Bill Rts. J. 1059 (2018).. Available at SSRN: https://ssrn.com/abstract=3082424

Brittany Deitch (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

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