It’s the first day of trial and your team is ready to go. Typically, 48 citizens stream into the courtroom. A small subset of those people will determine your fate—and whether your business unit will be satisfied with two years of litigation and millions in fees and expenses.
In this series, we’ll give you some ideas about how to select a good jury. But first, where do all these people come from?
Petit Jury vs. Grand Jury.
Let’s start with some useful terms. Your jury is not just a jury. It is a “petit jury.” Petit (small) juries sit on a single trial for as long as that trial lasts. Petit juries have at least 6, and no more than 12 members (although parties can stipulate to less than 6 jurors). Fed. R. Civ. Pro. 48(a) and (b). Petit juries are distinct from grand juries, which typically have 23 members and sit for lengthy periods (18 months) investigating crimes. Petit juries are chosen from the jury pool, the 48 (or more) citizens in the courtroom.
Where Does the Jury Pool Come From?
Each district or division of a district must create a jury plan for random jury selection. 18 U.S.C. § 1863. The jury plan explains the steps that occur to select a jury pool from the general population. Here we will focus on Delaware’s plan, but you will find the same rubric in most courts. Delaware publishes its plan at https://www.ded.uscourts.gov/jury-plan.
Step 1. The Clerk Creates a Master Jury Index.
A master jury index contains everyone who may be called for jury service. Delaware creates a master jury index from registered voters, licensed drivers and all persons with a state identification card in any of Delaware’s three counties.
Step 2. A Subset of the Master Jury Index is Added to the Master Jury Wheel.
Next, the Clerk of the Court chooses three random names, one from each county. A computer then creates the master jury wheel by choosing at least 1000 more names, each name being 50 names apart from the last name chosen from the master index. The Clerk purges and resets the wheel every six months, and after each federal general election.
Section 1863 allows, and in some cases requires, certain persons to be exempt from service. Active duty military, police and fire are all barred from serving. Persons over 70, persons who have served on a grand or petit jury within two years, persons who care for others whose health and safety would be jeopardized by the absence of the caregiver, and active physicians may all apply to be exempt from the master jury wheel.
Step 3. A Subset of the Master Jury Wheel is Added to the Qualified Jury Wheel.
Once the master jury wheel is set, the clerk will from time to time randomly select names for persons who will be placed on the qualified jury wheel. The clerk works with the District Judge designated as Jury Plan Judge to determine that the identified persons are qualified. Section 1865 identifies persons who are not qualified as those who are under 18, have not resided in Delaware for at least a year, are not US citizens, are not sufficiently proficient in English, are mentally or physically infirm such that they cannot served, or are charged with or convicted of a felony and have not had their civil rights restored.
Step 4. A Subset of the Qualified Jury Wheel is Summoned for Your Trial.
About three weeks before your trial begins, the jury administrator sends a summons to a random selection of jurors on the qualified jury wheel. Depending on the length of your trial, Delaware typically sends a summons to between 48 and 60 people. Anyone who is summoned has to show and serve unless the Jury Plan Judge previously excused them for the duration of service (for example, an active duty physician who applied to be excused) or the trial judge removes them on his or her own initiative, or based on a party challenge. Anyone who fails to show can be fined $1,000 or imprisoned for three days. 18 U.S.C. § 1866. In Delaware, the Court tends to use the far more effective “send the Marshal to your office and bring you in” technique.
Step 5. A Subset of the Summoned Individuals Form the Jury.
A petit jury is selected from a jury pool (or a “venire”), which are the 48 to 60 people who streamed into the courtroom. The jury selection process is called “voir dire.” Federal law gives litigants the “right to … petit juries selected at random from a fair cross section of the community in the district or division in which the court convenes.” 18 U.S.C. § 1861. Every citizen has an obligation to serve, id., and no citizen may be excluded on account of race, color, religion, sex, national origin, or economic status. 18 U.S.C. § 1862.
And that is where your jury pool or venire comes from. In a later post, we will talk about how you cut down panel down to your magic 8 through the effective use of voir dire and challenges.
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.
Alexander Kykta is an associate in the Houston office of Fish & Richardson. During his time at Fish, he has conducted research and prepared memos for patent litigation matters involving biomedical, electrical, and software patents, as well as Wi-Fi, touchscreen technology, microprocessors, and consumer electronics. He has also assisted in...
Cheryl Wang’s intellectual property litigation practice spans a wide range of technology, including life sciences, pharmaceuticals, biotechnology, software, hardware, and medical devices. Ms. Wang has worked on a variety of technologies, including pharmaceutical formulations, antibodies, biologics, immunotherapy, CRISPR, sleep apnea devices,...
Douglas E. McCann is a Principal in the Delaware office of Fish & Richardson. He leads and tries cases for some of the world’s best known companies in critical patent cases. He has worked for both plaintiffs and defendants in a variety of industries. Doug’s practice...
Katherine Reardon is an Associate in the litigation group at Fish & Richardson’s New York office. Her practice focuses on patent, copyright, and trademark litigation in federal district courts and in section 337 proceedings before the U.S. International Trade Commission. Kate has...