Requirements vary depending on the type of case and size of the jury. The number usually differs depending on whether the case is civil or criminal, and if criminal whether the case is capital, other felony, or misdemeanor. In civil cases each side receives the same number of peremptory challenges; in criminal cases, the number may differ.

Most states have statutes governing the distribution of peremptories in cases with multiple defendants or plaintiffs. Some jurisdictions allow for variance in the total number of peremptories in such cases; others retain the total number but split the peremptories among parties.

Note that the number allotted does not necessarily bear on the number used. Use of the total allotment of peremptory challenges is rare, because attorneys do not wish to face challenges that affect not only their decision, but also their professional and moral standing.

ABA Standard 9 states:

1. The number of and procedure for exercising peremptory challenges should be uniform throughout the state.

2. Peremptory challenges should be limited to a number no larger than necessary to provide reasonable assurance of obtaining an unbiased jury.

3. Following completion of the voir dire examination, counsel should exercise their peremptory challenges by alternately striking names from the list of panel members until each side has exhausted or waived the permitted number of challenges.

For state-by-state information, refer to David Rottman et al., State Court Organization, 2004 (Washington, DC: Bureau of Justice Statistics, 2006), Table 41, “Trial Juries: The Allocation of Peremptory Challenges.” See also G. Thomas Munsterman, Paula L. Hannaford, and G. Marc Whitehead, eds., Jury Trial Innovations (Williamsburg, VA: National Center for State Courts, 1997), Appendix 4, “Number of Peremptory Challenges by State and Case Type.”

Federal Rule of Civil Procedure 47(a) authorizes the court to permit trial attorneys to question prospective jurors directly during voir dire. Most states have adopted a similar rule.

Voir dire is a formal process of inquiry conducted to ensure that those veniremen selected as jurors will consider the evidence in a fair and impartial manner. Voir dire also provides lawyers, albeit stealthily, with an opportunity to advocate for their respective clients. Thus, the inherent tension between these two objectives has caused the majority of federal judges, and many state judges, to assume a dominant role in examining potential jurors. A range of involvement is possible: from judges who deny lawyers any active role, to judges who are not even present and leave the entire process in the hands of lawyers.

Proponents of lawyer-conducted voir dire argue that:

• Because they have more intimate knowledge of the facts and issues presented in the case, lawyers tend to uncover bias more effectively than judges

• As advocates, lawyers are highly motivated to search out bias

• Jurors may be less intimidated by lawyers and, hence, more likely to respond candidly

• Jurors will see the importance of party participation in the trial process

• Direct participation of counsel enhances jurors’ public trust and confidence in the system

Drawbacks to lawyer-conducted voir dire include:

• Lengthier trial proceedings

• Inadequate supervision by the judge, which may lead to inappropriate pretrial arguments by counsel

• Inadequate protection of juror privacy

• Inappropriate use of the process by lawyers

Typically, voir dire procedures are uniform throughout a state. A few states conduct voir dire differently in courts of general and limited jurisdiction.

See David Rottman et al., State Court Organization, 1998 (Washington, DC: Bureau of Justice Statistics, 2000), Table 41, “Trial Juries: Who Conducts Voir Dire and the Allocation of Peremptory Challenges.”

Stratified jury selection is a weighted sampling technique based on location within the jurisdiction or on the racial or ethnic characteristics of the prospective jurors. Stratified selection is also known as “structured” or “clustered” sampling.

The advantages of stratification are that it improves the likelihood that the pool from which the jury is selected will fairly represent the demographics of the court’s jurisdiction. It can be used to compensate for source lists that do not produce a fair cross-section of the community, or for disproportionate response and qualification rates. Moreover, conducting the research necessary to implement stratified selection helps the court identify major causes of underrepresentation. Finally, stratification may protect jury-selection systems from legal challenges based on intentional discrimination or Sixth Amendment claims.

However, stratification presents its own issues. The process may be subject to equal-protection or due-process challenges. It may well open the court to claims based on the federal Jury Selection and Service Act and corresponding state statutes.

For more information about stratification, please refer to G. Thomas Munsterman, Paula L. Hannaford, and G. Marc Whitehead, eds.,  Jury Trial Innovations (Williamsburg, VA: National Center for State Courts, 1997), pp. 38-40.

The multiple voir dire approach consists of a judge selecting several juries on one day for trials set for a future date. One trial begins immediately after voir dire.

Advantages to multiple voir dire include:

• More flexibility to jury selection
• May be used in certain areas or for particular types of cases
• May promote more efficient use of jurors
• More efficient use of judge time

Disadvantages include:

• Long voir dire
• Many cases may reach pleas or settle on the day the jury is to report (although this may be remedied by a call-in system)