In Virginia Circuit Court, a criminal trial will be by jury unless both sides agree to waive a jury.

The jury selection process is critical, not only to weed out the least fair potential jurors, but to identify such potential jurors in the first place, to understand the pulse and sense of the jurors, and to start introducing the case to the jurors.

Each side can seek to remove unwanted potential jurors through challenges for cause — which challenges assert that the potential juror cannot be relied upon to follow his or her oath as a juror — and through peremptory strikes. The law places no limits on the number of potential jurors who can be stricken by the judge for cause. The law places precise limits on the number of peremptory strikes made by each side, which strikes can be made for any reason that does not violate Batson and its progeny.

Unfortunately, as underlined today from the Virginia Court of Appeals, Virginia appellate caselaw permits trial judges to keep potential jurors who enter the courtroom believing that the criminal defendant is more likely guilty than not guilty, so long as the juror is not committed to that view and will impartially consider all evidence. Taylor v. Virginia, ___ Va. App. ___ (March 15, 2017). That is the caselaw even if the potential juror reached such a viewpoint based on pretrial publicity or from figuring that the defendant would not have reached the point of trial if s/he were not guilty.

Consequently, when a judge refuses to strike a potential juror for the criminal defense lawyer’s cause challenge, the lawyer and the defendant need to decide whether to use one of their precious finite peremptory strikes to remove the potential juror from the jury pool, while of course preserving the cause challenge issue for appeal.