Rethinking Juror Impartiality

Authors

Anna Offit, Southern Methodist University, Dedman School of LawFollow

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0000-0001-7375-5189

Abstract

Jury impartiality in the contemporary court often justifies the perpetuation

of exclusionary selection practices that make juries more—not less—biased.

This Article calls for a rethinking of this important but flawed concept. Constitutional

interpretations and conceptions of “impartiality” frame it as a transient

orientation toward particular evidence or parties. Yet, during voir dire, the prevailing

conception of jury impartiality is that it is an immutable character trait

that must be discovered—if not created—by professional legal actors. What voir

dire creates is not an impartial jury, but precisely the opposite: a venire shaped

by the strategic biases of lawyers.

This Article offers an alternative. The presumption of impartiality applied

to judges should inspire a new approach to their lay counterparts. The norms of

judicial impartiality show that the criminal legal system largely assumes judges

are, unless shown otherwise, impartial actors who deserve discretion to decide

whether their relationship to a case warrants recusal. In this way, impartiality is

something a legal actor must take responsibility for in their role in the trial. Prospective

jurors should be empowered in the same way. By reforming voir dire

techniques already in use, courts can hold jurors to a comparable standard of

impartiality and dispense with the advantage-seeking ethos of jury selection that

allows lawyers to impute partiality to prospective jurors. This reform will help

juries realize an ideal of impartiality premised on representativeness rather than

exclusion and empower jurors to take greater responsibility for their special role in

the legal process.

Publication Title

George Washington Law Review

Document Type

Article

Keywords

juror impartiality, voir dire, jury selection, judicial impartiality, criminal procedure, courts, jurors, Sixth Amendment

Recommended Citation

Anna Offit, Rethinking Juror Impartiality, 93 Geo. Wash. L. Rev. 1386 (2025)