Striking potential jurors- Fairfax criminal defense lawyer weighs in

Striking potential jurors involves peremptory and cause strikes, says Fairfax criminal lawyer

Striking jurors is an essential part of pursuing the best possible result in a jury trial. As a Fairfax criminal defense lawyer, I know that before a lawyer even presents an opening statement to a jury, the attorney must proceed with jury voir dire / questioning, to determine the prejudice level or not of each potential juror (and, as a fringe benefit, to start educating and persuading the jury to the criminal defendant’s side); peremptory challenges as of right; and cause challenges to seek removal of jurors who have not been shown to be able to follow their oath.

Number of peremptory juror challenges per side in a Virginia criminal trial

A Virginia felony trial gives each side four peremptory jury strikes, and a misdemeanor trial gives each side three peremptory strikes from the juror / venire panel. Va. Code § 19.2-262. The trial judge may also call alternative jurors who will be stricken unless needed to replace a regular juror who is not able to complete his or her juror service. For each three potential alternate jurors, each side gets a chance at peremptorily striking one potential juror. Va. Code § 8.01-360.

The challenge for peremptory striking with multiple defendants

The number of peremptory challenges per side applies to each side collectively. Therefore, no matter how many criminal defendants are jointly tried before a jury, the criminal defense lawyers collectively must do their best to agree on each peremptory striking by the defense. Va. Code § 19.2-262

Prosecutors must not make race-based jury challenges

Prosecutors are barred under the Sixth Amendment from exercising race-based jury striking. The criminal defense lawyer must be ready to timely bring to the trial judge’s attention evidence of such race-based challenges. Batson v. Kentucky, 476 U.S. 79 (1986); Hopkins v. Virginia, 53 Va.App. 394 (2009).

Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: “‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made the prosecution must offer a race-neutral basis for striking the juror in question[; and [t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’” Snyder v. Louisiana, 552 U.S. 472 (2008). 

Criminal defendants may move to strike potential jurors for cause

In addition to being able to strike potential jurors via peremptory challenges, parties to a criminal prosecution may seek the striking of potential jurors for cause, based on the following caselaw: “The right to be tried by an impartial jury is guaranteed under both the United States and Virginia Constitutions… For that guarantee to be effective, persons accused of violating criminal laws must be provided with ‘an impartial jury drawn from a panel [of twenty] free from exceptions.’… Every prospective juror must stand indifferent to the cause, ‘and any reasonable doubt as to a juror’s qualifications must be resolved in favor of the accused.'” Taylor v. Virginia, 61 Va. App. 13, 733 S.E.2d 129 (2012).

Northern Virginia chief prosecutor declines to exercise peremptory juror challenges

At an April 29, 2020, Justice Forward Virginia forum, Arlington County Virginia’s chief prosecutor Parisa Dehghani Tafti confirmed that her office declines to exercise peremptory juror striking, instead respecting each venire panel member for having come to serve as a juror. This is great for criminal defendants, because when a prosecutor declines to seek peremptory strikes, that leaves on the jury panel the defendant’s preferred jurors, unless stricken for cause. Hopefully many other chief and line prosecutors will follow Parisa’s lead in not exercising peremptory juror challenges.

Fairfax criminal defense lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions. Call 703-383-1100 to schedule a free consultation with Jon Katz about your criminal court-pending case.