Rethinking Juror Impartiality

Jury impartiality in the contemporary court often justifies the perpetuation of exclusionary selection practices that make juries more—not less—biased. This Article calls for a rethinking of this important but flawed concept. Constitutional interpretations and conceptions of “impartiality” frame it as a transient orientation toward particular evidence or parties. Yet, during voir dire, the prevailing conception of jury impartiality is that it is an immutable character trait that must be discovered—if not created—by professional legal actors. What voir dire creates is not an impartial jury, but precisely the opposite: a venire shaped by the strategic biases of lawyers.

This Article offers an alternative. The presumption of impartiality applied to judges should inspire a new approach to their lay counterparts. The norms of judicial impartiality show that the criminal legal system largely assumes judges are, unless shown otherwise, impartial actors who deserve discretion to decide whether their relationship to a case warrants recusal. In this way, impartiality is something a legal actor must take responsibility for in their role in the trial. Prospective jurors should be empowered in the same way. By reforming voir dire techniques already in use, courts can hold jurors to a comparable standard of impartiality and dispense with the advantage-seeking ethos of jury selection that allows lawyers to impute partiality to prospective jurors. This reform will help juries realize an ideal of impartiality premised on representativeness rather than exclusion and empower jurors to take greater responsibility for their special role in the legal process.