How Does Jury Selection Work in Federal Criminal Cases in the Eastern District of New York?
If you are facing federal criminal charges in Brooklyn or on Long Island, jury selection is one of the most important stages of your case. It determines who will hear the evidence, evaluate the witnesses, and decide whether the government has proved its allegations beyond a reasonable doubt.
For many defendants, jury selection is also one of the least understood parts of a federal criminal trial. Television often portrays lawyers as freely selecting the jurors they believe will favor their side. The actual process is more structured. The judge controls the proceedings, the attorneys must follow specific legal rules, and the defense has a limited number of opportunities to remove prospective jurors.
In the Eastern District of New York (EDNY), jury selection is governed by the Federal Rules of Criminal Procedure, constitutional requirements, the district’s jury selection plan, and the procedures established by the judge assigned to the case.
This article explains how jury selection works in federal criminal cases, what happens during questioning, how attorneys remove prospective jurors, how the process changes when multiple defendants are tried together, and what defendants should expect when their case approaches trial.
1. Where Does Federal Jury Selection Take Place in EDNY?
The Eastern District of New York covers Brooklyn, Queens, Staten Island, Nassau County, and Suffolk County.
Federal criminal trials are conducted at the courthouses in Brooklyn and Central Islip on Long Island. The location of a particular trial depends on the case and the court’s assignment and scheduling decisions.
Jury selection takes place in the courtroom where the case is scheduled for trial. Prospective jurors are brought before the judge, questioned about their backgrounds and potential biases, and considered for service on the particular case.
Although the federal rules apply throughout the district, the precise jury-selection procedure can vary by judge. Some judges conduct most of the questioning themselves, while others permit more direct attorney participation. The process for exercising challenges can also vary.
For that reason, defendants should understand both the general federal rules and the procedures established by the judge handling their case.
2. Where Do Prospective Jurors Come From?
Federal jurors are drawn from the community within the judicial district.
Under EDNY’s Jury Selection Plan, prospective jurors are selected at random from voter registration lists for the district’s five counties, supplemented by New York State Department of Motor Vehicles records.
People selected for possible service may receive questionnaires and summonses requiring them to report for jury duty. However, receiving a summons does not mean that someone will serve on a particular criminal trial.
The court maintains a pool of prospective jurors. When a criminal case is ready for trial, a group of those individuals is brought forward for consideration.
Some people may be excused before being considered for a particular case. Others will be questioned and removed during jury selection. The remaining jurors will form the jury that hears the evidence.
The objective is to select a qualified and impartial jury from a representative cross-section of the community.
3. What Happens on the First Day of Jury Selection?
The first day of jury selection is often different from what people expect.
The judge generally explains the nature of the case and begins the process of determining whether prospective jurors can serve fairly. The court may identify the charges and the parties, but this preliminary explanation is not a presentation of the evidence and does not establish that the defendant committed a crime.
Prospective jurors may be asked whether they know the defendant, the attorneys, or potential witnesses. They may also be asked about their exposure to publicity, their personal experiences, and their ability to follow the court’s instructions.
Depending on the judge’s procedures, the court may use written questionnaires, group questioning, individual questioning, or a combination of methods.
The attorneys evaluate the answers and identify potential concerns. If a prospective juror appears unable to remain impartial, an attorney may ask the judge to remove that person.
The process continues until the court has selected the jury and any alternate jurors.
4. What Is Voir Dire?
The questioning of prospective jurors is called voir dire.
The purpose of voir dire is to determine whether prospective jurors are qualified to serve and capable of evaluating the case impartially.
In a federal criminal prosecution, jurors must understand that the defendant is presumed innocent and that the government bears the burden of proving guilt beyond a reasonable doubt. They must be able to apply these principles even if they have personal opinions about crime, law enforcement, or the type of conduct alleged.
Questions during voir dire may address several subjects.
Familiarity with the parties and witnesses. Prospective jurors may be asked whether they know the defendant, attorneys, witnesses, or others connected with the case.
Knowledge of the case. The court may ask whether prospective jurors have encountered news reports, social media posts, or other information about the allegations.
Personal experiences. A prospective juror’s experience as a crime victim, witness, or person involved in a similar dispute may warrant additional questioning.
Attitudes toward law enforcement. The court may explore whether a juror would automatically believe a federal agent or other law enforcement witness because of that person’s position.
Views about the charges. The court may examine whether a prospective juror has fixed opinions about the type of crime alleged or whether the person can consider the evidence without prejudgment.
Having an opinion or a prior experience does not automatically disqualify someone. The central question is whether the person can put aside any bias and decide the case based on the evidence and the judge’s instructions.
5. Does the Defense Attorney Question the Jurors Directly?
Not necessarily.
Federal Rule of Criminal Procedure 24(a) allows the judge to question prospective jurors or to permit the attorneys to conduct the examination.
When the judge conducts the questioning, the attorneys must be permitted to ask additional questions the judge considers proper or submit questions for the judge to ask if the judge considers them appropriate.
In practice, the assigned judge determines how voir dire will be conducted, subject to the governing rules.
For example, suppose a prospective juror explains that a close family member was the victim of a crime similar to the one alleged in the indictment. The defense may want to explore whether that experience affects the juror’s ability to remain impartial.
The attorney may request additional questioning. The judge determines how the inquiry proceeds and whether the answers provide grounds for removing the prospective juror.
The goal is not to persuade jurors to favor the defense. It is to identify potential bias and ensure that the jury can fairly decide the case.
6. What Is a Challenge for Cause?
A challenge for cause is a request that the judge remove a prospective juror because there is a legally sufficient reason to conclude that the person cannot serve impartially or otherwise is not qualified to serve.
For example, a prospective juror might state that anyone charged with a particular offense must be guilty. If further questioning establishes that the person cannot set aside that belief and follow the court’s instructions, the defense may have grounds to challenge the juror for cause.
Other possible grounds include a disqualifying relationship with a party or witness, a fixed bias concerning the defendant, or another circumstance that prevents impartial service.
The attorney identifies the concern and asks the judge to excuse the juror. The prosecution may agree or oppose the request, and the judge decides whether to grant it.
There is generally no fixed numerical limit on challenges for cause. However, each challenge must have a legally sufficient basis.
A challenge for cause is therefore different from a peremptory challenge, which generally does not require the same showing of specific bias.
7. What Is a Peremptory Challenge?
A peremptory challenge allows an attorney to remove a prospective juror without establishing the same type of specific disqualifying bias required for a challenge for cause.
These challenges recognize that an attorney may have legitimate concerns about a prospective juror even when the available information does not establish that the person is legally disqualified.
For example, a juror’s answers may raise concerns about how that person will approach an important issue in the case. Those answers may not establish an inability to be impartial, but the attorney may still decide to exercise a peremptory challenge.
The number of peremptory challenges is limited, so attorneys must decide how to use them.
Peremptory challenges are not unrestricted. Under Batson v. Kentucky and related constitutional precedent, they cannot be exercised on impermissibly discriminatory grounds, including race or sex.
If a party raises a legally sufficient objection to a potentially discriminatory strike, the court may require an explanation and determine whether the challenge is constitutionally permissible.
The distinction is important: a peremptory challenge generally does not require proof of actual bias, but it cannot be used to evade constitutional protections.
8. How Many Peremptory Challenges Does the Defense Get in Federal Court?
The number depends on the type of case.
Under Federal Rule of Criminal Procedure 24(b), the standard allocation in a noncapital felony case is:
- Government: Six peremptory challenges.
- Defense: Ten peremptory challenges for the defendant or defendants jointly.
These are the standard allowances for the principal jury. Different rules apply to capital cases and misdemeanors, and separate provisions govern alternate jurors.
In a case involving multiple defendants, the ten defense challenges are not automatically multiplied by the number of defendants.
Three defendants do not automatically receive ten challenges each. Nor do four defendants automatically receive forty challenges.
Instead, the defendants generally begin with ten challenges collectively, unless the court authorizes additional challenges.
That distinction becomes particularly important in a multi-defendant federal criminal trial.
9. What Happens When Three or Four Defendants Are Tried Together?
When multiple defendants are tried together, they may have different interests and different reasons for wanting a prospective juror removed.
One defendant may be concerned about a juror’s views concerning a particular allegation. Another may be concerned about the juror’s attitude toward cooperating witnesses. A third may have a concern arising from the juror’s answers about law enforcement.
Even though the defendants are being tried together, their defenses are not necessarily identical.
The challenge-allocation rules recognize that multi-defendant trials can create additional difficulties. Federal Rule of Criminal Procedure 24(b)(2) allows the court to authorize additional peremptory challenges and to permit those challenges to be exercised separately or jointly.
This gives the judge discretion to adjust the number and allocation of challenges based on the circumstances of the case.
For example, in a three-defendant felony trial, the defense may request three additional peremptory challenges for each defendant. That would mean nine additional challenges, on top of the ten challenges the defendants share collectively.
The proposed allocation would look like this:
These figures illustrate the proposed request, not an automatic entitlement under the rules.
The court decides whether to grant additional challenges and how they may be exercised. The prosecution’s allocation may also be adjusted under the applicable rules and the court’s order.
Why ask for additional challenges?
The practical reason is that the defendants may have different concerns about the same prospective juror.
Without separate challenges, the defendants may have to coordinate the use of their shared allotment. A juror who raises a concern for one defendant may not raise the same concern for another.
Separate additional challenges give each defendant greater flexibility to address individual concerns while preserving the challenges shared by the defense.
However, the defendants may also disagree about which jurors should be removed. One defendant may want to strike a juror whom another defendant considers acceptable. How the challenges are allocated can therefore become an important issue before jury selection begins.
Does the judge have to grant the request?
No. Rule 24(b)(2) gives the judge discretion to allow additional challenges in a multi-defendant case.
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The court considers the circumstances of the trial and determines whether additional challenges are appropriate and how they should be exercised.
The defense should not assume that each defendant automatically receives three additional challenges, or any other fixed number beyond the rule’s standard allocation.
The specific number must be established by the court.
10. How Does a Defense Attorney Evaluate a Prospective Juror?
Jury selection requires more than listening for an explicit statement of bias.
Some prospective jurors openly acknowledge that they cannot be impartial. Others sincerely believe they can be fair, even though their answers reveal experiences or attitudes that warrant further examination.
The defense attorney must evaluate the information available without assuming that a particular characteristic predicts how someone will vote.
Relevant considerations may include the prospective juror’s answers, personal experiences, professional background, and stated ability to apply the law.
The issues in the case also matter.
If the prosecution relies heavily on cooperating witnesses, the defense may explore whether prospective jurors can evaluate testimony from witnesses who have incentives to provide information.
If the case involves complicated financial transactions, the defense may be concerned about whether prospective jurors can independently evaluate the records and competing interpretations.
If the government’s theory depends on proving the defendant’s knowledge or intent, the defense may focus on whether prospective jurors can distinguish suspicion from proof beyond a reasonable doubt.
These considerations do not create a formula for predicting a verdict. They help the attorney identify potential concerns and make informed decisions about challenges.
11. Can the Defendant Participate in Jury Selection?
The defendant can participate in preparing for jury selection through discussions with the defense attorney, but the defendant does not personally select the jury.
The attorney evaluates prospective jurors, identifies potential grounds for removal, and exercises challenges under the applicable rules and courtroom procedures.
The defendant may have observations or concerns worth discussing with counsel. The attorney can consider those observations alongside the prospective juror’s answers, the legal standards, and the circumstances of the case.
However, a person’s appearance, occupation, or initial demeanor does not reliably predict how that person will decide the case.
The objective is not to assemble a jury that promises to acquit. No such guarantee is possible.
The objective is to identify a jury capable of deciding the case fairly and to use the available challenges to address legitimate concerns.
12. What If a Prospective Juror Has Heard About the Case?
Prior exposure to publicity does not automatically disqualify a prospective juror.
This issue can be especially important in high-profile federal prosecutions involving public officials, organized crime allegations, financial fraud, or other matters that have attracted significant attention.
During voir dire, the court may ask whether prospective jurors have encountered information about the allegations and whether that information has affected their opinions.
If a prospective juror has formed a fixed opinion about the defendant’s guilt and cannot set it aside, the defense may have grounds to seek removal for cause.
However, simply recognizing the defendant’s name or having read a news report is not necessarily enough to establish disqualifying bias.
The court evaluates the circumstances and determines whether the prospective juror can serve impartially.
13. What Happens After the Jury Is Selected?
Once jury selection is complete and the court resolves the remaining challenges, the jurors are sworn.
A federal criminal jury ordinarily consists of twelve jurors, although the rules permit limited exceptions. The court may also select alternate jurors.
Under Federal Rule of Criminal Procedure 24, the court may select up to six alternate jurors. The number actually selected depends on the circumstances of the case and the court’s decision.
Alternates are sworn and must follow the court’s instructions. They may replace regular jurors who become unable to serve or are disqualified during trial.
Once the jury is finalized, the court generally proceeds with preliminary instructions and opening statements, followed by the presentation of evidence.
The jury-selection process is complete, but the jurors’ responsibility is only beginning.
14. How Long Does Jury Selection Take?
There is no universal answer.
The time required depends on the complexity of the case, the number of defendants, the number of prospective jurors examined, the judge’s procedures, and the issues that arise during questioning.
A relatively straightforward case may require less time than a complicated prosecution involving several defendants, extensive publicity, sensitive allegations, or numerous potential conflicts.
The process may also take longer if the court needs individual questioning, reviews written questionnaires, resolves challenges for cause, or addresses disputes concerning peremptory challenges.
Defendants should not assume that jury selection will always be completed in a single day. Nor should they assume that a lengthy selection process necessarily signals a problem with the case.
15. Can a Defendant Waive a Jury Trial?
In some federal criminal cases, a defendant may choose to have the case decided by a judge rather than a jury. This is called a bench trial.
Under Federal Rule of Criminal Procedure 23(a), a defendant may waive a jury trial in writing if the government consents and the court approves.
A bench trial eliminates the need to select jurors because the judge determines the facts and applies the law.
Whether a bench trial is appropriate depends on the circumstances of the case and is a significant strategic decision. A defendant should not assume that a judge will necessarily evaluate the evidence more favorably than a jury would.
16. Questions to Ask Your Federal Criminal Defense Attorney
If your federal criminal case is approaching trial in EDNY, consider discussing the following questions with your attorney:
What jury-selection procedure will the judge use?
Ask how prospective jurors will be questioned and how challenges will be exercised.
Will the court use a written questionnaire?
If so, ask how the questionnaire will be used and what subjects the court intends to explore.
What potential biases are most important in my case?
The answer should reflect the specific charges, anticipated evidence, and disputed issues.
How many peremptory challenges are available?
The standard allocation may not be the final allocation, particularly in a multi-defendant trial.
If several defendants are being tried together, will the defense request additional challenges?
The defendants may have different interests. The court may allow additional challenges to be exercised separately or jointly.
How will disagreements between co-defendants be handled?
Where defendants have different defenses, they may disagree about whether a prospective juror should be removed. The challenge-allocation procedure should be understood before jury selection begins.
How long is jury selection expected to take?
Your attorney may be able to provide an estimate based on the judge’s procedures and the circumstances of the case, although the exact duration cannot always be predicted.
Frequently Asked Questions
Does the defense get ten peremptory challenges for each defendant?
No. In a standard noncapital felony case, the defendants generally share ten peremptory challenges. Additional challenges may be authorized by the judge in a multi-defendant case.
Can each defendant receive separate peremptory challenges?
Yes. Rule 24(b)(2) permits the court to authorize additional challenges and determine whether they may be exercised separately or jointly.
If there are three defendants, can the defense have nineteen challenges?
The defense can request that allocation: ten shared challenges plus three additional challenges for each of the three defendants, for a total of nineteen. The judge must approve the additional challenges.
If there are four defendants, can the defense have twenty-two challenges?
The defense can request that allocation: ten shared challenges plus three additional challenges for each of the four defendants, for a total of twenty-two. Again, the judge must approve the additional challenges.
Can a lawyer remove a juror simply because the lawyer dislikes the person?
A peremptory challenge generally does not require the same showing of specific bias as a challenge for cause. However, it cannot be exercised on constitutionally impermissible discriminatory grounds.
Can jury selection predict the verdict?
No. Jury selection can identify potential bias and help attorneys make informed decisions, but it cannot guarantee how a juror will evaluate evidence that has not yet been presented.
Is jury selection the same in every EDNY courtroom?
No. The governing federal rules apply throughout the district, but the precise procedures may vary by judge.
Conclusion
Jury selection is one of the first major stages of a federal criminal trial, but its significance extends well beyond the day the jurors are chosen.
The process determines who will evaluate the government’s evidence, assess witness credibility, and decide whether the prosecution has proved its case beyond a reasonable doubt.
For the defense attorney, jury selection requires preparation, an understanding of the case’s central issues, the ability to identify potential bias, and sound decisions about the available challenges.
In a multi-defendant trial, the process can become more complicated because the defendants may have different interests and different reasons for wanting a prospective juror removed. The allocation of peremptory challenges can therefore become an important pretrial issue.
No attorney can guarantee that a particular jury will reach a particular verdict. What the defense can do is prepare carefully, identify legitimate concerns, use the procedures available under the law, and work to ensure that the case is decided by a fair and impartial jury.
If you are facing federal criminal charges in Brooklyn or on Long Island, understanding jury selection is an important part of understanding the trial process itself.
Primary Legal Authorities
- Federal Rule of Criminal Procedure 23, governing jury trials and waiver of a jury trial.
- Federal Rule of Criminal Procedure 24, governing voir dire, peremptory challenges, and alternate jurors.
- The EDNY Jury Selection Plan.
- Batson v. Kentucky, 476 U.S. 79 (1986), governing discriminatory use of peremptory challenges.
Official resources: Federal Rules of Criminal Procedure | EDNY Jury Selection Plan
