Question

You are Mr. Desmond’s attorney. Your client has asked you to pursue people from his faith group as jurors and to object to any attempt to exclude them on the part of the state. You are aware that typically these jurors are excluded for cause. How will you proceed?


You decide to object to any striking of these jurors for cause, even though most courts find it appropriate to do so. You also decide to attempt to empower these potential jurors in the selection process by explaining that jury duty is essentially about seeking a fair outcome for members of the community, something any member of the church can do.

You decide to explain to Mr. Desmond that there is no legal basis for his preference and that he does not, in fact, have the right to choose only people (or more people) who share his religion. You also decide to tell him that the law is well-settled; people who cannot or will not sit in judgment cannot decide a case.

Answer 1

Short answer to Mr. Desmond and to you as his lawyer: you can and should resist improper exclusions, but you cannot lawfully demand a jury composed of people of a particular religion. The proper, ethical, and effective approach is (1) to preserve objections to any improper for‑cause strikes, (2) to use voir dire to rehabilitate and demonstrate impartiality when possible, (3) to avoid frivolous or meritless arguments, and (4) to explain to Mr. Desmond why the court’s usual grounds for excluding certain jurors are legally permissible.

What the law permits and what it doesn’t
- A defendant does not have a right to pick jurors who share his religion. The Sixth Amendment guarantees an impartial jury, not a jury that matches the defendant’s faith. The “jury of one’s peers” notion does not mean same religion.
- Prospective jurors may be excluded for cause if their answers or beliefs demonstrate they cannot be impartial, cannot follow the law, or otherwise cannot perform the duties of a juror. Courts routinely sustain for‑cause strikes when a venireperson says they could not impose a particular penalty or cannot judge without bias.
- Peremptory strikes based solely on race are unconstitutional (Batson). Whether Batson (or equivalent state law) covers religion varies by jurisdiction; some courts extend Batson principles to religion, but not all. Don’t assume blanket protection for religion‑based peremptories—raise a Batson challenge where it’s applicable and supported.
- With respect to capital cases, jurors who say they will never consider the death penalty (or conversely, who say they will always impose it) are excludable (Witherspoon and its progeny). Similar rules can apply to other issues when a prospective juror’s views prevent them from performing core duties.

How I will proceed in court (practical strategy)
1. Preserve objections, but be principled
- I will object to any for‑cause strike of a member of his faith only when the state’s proffered reason is insufficient on the record (i.e., the juror has not actually said they cannot be fair or follow instructions).
- I will avoid making frivolous objections. Courts sanction counsel for unsupported, repetitive objections. We must frame objections that are legally tenable and supported by the venire person’s answers.

2. Use voir dire to rehabilitate jurors
- When a juror gives an answer that could be read as problematic for the state, I will ask follow‑ups to elicit whether the juror truly cannot be impartial or whether the juror can follow the law and judge based on evidence.
- Sample follow‑ups: “You said X. If the judge instructs you to do Y or if the evidence shows Z, can you follow that instruction and decide based on the evidence? Please explain.” Open, non‑leading questions are best.
- If the court contemplates excusing a juror for cause, I will seek the chance to rehabilitate on the record. If the court refuses, I will state a clear, brief objection and request an explanation for the ruling on the record so we can preserve issue for appeal.

3. Empower jurors ethically (what I will say — and won’t say)
- I can explain the role of a juror in neutral terms: jury duty is about listening to the evidence, following the judge’s instructions, and seeking a fair result for the community. That is permissible and often helps demystify the duty.
- I will not coach jurors to hide their inability to be impartial or instruct them how to answer to remain on the panel. Coaching a juror to lie is unethical and illegal.
- I will encourage honest answers: “It’s important you answer truthfully. If your beliefs would prevent you from judging impartially or following the judge’s instructions, say so. If you can be fair, we want to hear that too.”

4. If the prosecutor uses peremptories in a way that appears discriminatory
- I will raise a Batson (or state‑law equivalent) challenge when strikes appear motivated by protected class (race; if our jurisdiction extends Batson to religion, also religion or national origin). Be prepared to make a prima facie showing and require the government to give race‑/religion‑neutral reasons.
- If no Batson protection for religion exists in our jurisdiction, we can still fight for individual jurors by rehabilitating them in voir dire and objecting to for‑cause dismissals.

5. Preserve the record for appeal
- When I object, I will make a short, specific record: what the juror said, why that does not demonstrate inability to serve, and why excusal would be reversible error. If the court rules against us, we will note it explicitly for appeal.

What I will tell Mr. Desmond (plainly)
- You do not have the legal right to insist on a jury of people who share your religion. The Constitution guarantees an impartial jury, not a jury made up of co‑religionists.
- We will try to seat members of your faith if they can serve impartially, and I will object to any improper exclusion. But if a prospective juror’s answers show he or she cannot follow the law or be impartial, the court is likely to exclude that person and such exclusion will usually be upheld.
- I will defend your interest vigorously and ethically: I will object to unjustified exclusions, I will rehabilitate willing jurors on the record, and I will preserve objections for appeal if necessary — but I will not pursue futile or improper objections that would risk sanctions or harm our credibility.

Suggested voir dire language and objection wording (examples)
- Voir dire questions to promote honest responses and test impartiality:
- “Do any of your religious beliefs make it difficult for you to judge someone based on the evidence presented in court, or to follow a judge’s instructions about the law?”
- “If the judge instructs you to apply the law a certain way, can you do so even if your personal beliefs differ?”
- “Can you promise to decide only on the evidence and the law, and to put aside any sympathy or bias for or against anyone involved because of their religion or ours?”

- Short objection when court grants excusal despite equivocal answers:
- “Your Honor, I object to the removal for cause. The venireperson stated they could follow the judge’s instructions and decide based on the evidence. There has been no adequate showing that this juror cannot be impartial. I request the opportunity to rehabilitate on the record.”

Bottom line
We will press to keep fair, willing members of your faith on the panel by careful voir dire and principled objections, but I will explain candidly that the law does not give you a right to a jury composed of people who share your religion, and courts will exclude jurors who cannot perform the duties of impartial judgment. I will pursue objections and preservation for appeal where the state’s exclusion is unsupported by the record, but I will not advance frivolous or unethical tactics.