Striking a Balance of Fairness: Sexual Orientation and Voir Dire

Abstract

A criminal defendant's Sixth Amendment right to be tried by an impartial jury is one of the ways the American justice system seeks to protect individuals' due process rights. Voir dire, the questioning of prospective jurors, is one of the means used to ensure at least the appearance of an impartial jury, even if voir dire does not always achieve the lofty goal of a truly impartial jury. Voir dire facilitates the fulfillment of a criminal defendant's Sixth Amendment right by allowing parties to an action and their counsel to identify and exclude prospective jurors who may harbor biases against one of the parties involved. The federal common law defines an "impartial jury" as one drawn from a panel that accurately reflects that community and is selected with non-discriminatory criteria. In addition to protecting the parties' right to a fair trial decided by an impartial jury, the voir dire system also encompasses a potential juror's rights, such as the equal protection right to have the opportunity to serve as a juror and the right to a reasonable degree of privacy. The Supreme Court has held that discriminatory practices in jury selection raise doubts about the integrity of the entire jury system and also violate the equal protection rights of the excluded jurors. These overlapping, and sometimes conflicting rights of the parties and the prospective jurors all come into play when a litigant exercises a peremptory strike.