How long should it take to pick a jury in a murder case?

I have previously written about the English method (frequently seen in the federal courts) and the American method (frequently seen in the state courts) for jury selection.  With that in mind, I see that a jury of six women has been picked in the State of Florida’s prosecution of George Zimmerman for the shooting death of Trayvon Martin.  They started with a pool of 40 people.  Jury selection took two weeks.

The time it took to select a jury in the Florida case illustrates the differences in how judges from different venues view jury selection.  While I have absolutely no criticism of the Florida judge, and while I realize that the national publicity regarding the Florida incident makes that case unique, I thought it might be useful to look at how long it took to select a jury in a roughly comparable case here in Federal court.

Let’s take, for example, United States v. Hoover,   After a nine-day trial, Jeffrey Hoover was convicted, and sentenced to life in prison, on two counts of using a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1), resulting in the first degree murders of Harold Fowler and Duane Johnson.  Hoover was white and the victims were men of color (Black or Native American).  Hoover, using two teenage kids to help him, executed Fowler and Johnson, with a rifle at close range, after they stiffed him on a $850 marijuana deal.  He shot one of them in the genitals.

The prosecutors and defense counsel involved in the Hoover case were the best in the business.  One of the defense lawyers was appointed precisely because of his great skill and vast experience dealing with murder cases.  He talked Main Justice out of seeking the death penalty.  The nearly two-week trial saw 30 government witnesses and five defense witnesses.

In the Zimmerman case, it took two weeks to select a six person jury from a pool of 40.  In the Hoover case it took two hours to select a 12 person jury plus an alternate out of a pool of 40.  Perhaps you can see now why I prefer the English method of jury selection–short and sweet even in big cases.


23 responses

  1. Your Honor, I went back to the link you provided. I read the blog-post and extracted the following for my response:

    ” I don’t pretend that my way is the best. I am convinced, however, that the method I employ is efficient and results in a jury that is more or less impartial. In the real world, that is all that should be expected. Besides, I like watching exploding heads!”

    My enjoyment of your subtle humor is not diminished by my respectful partial disagreement with your approach to void dire.

    I endorsed your entire approach and thought it was well thought out – right until I saw the strictly enforced 20 minute limitation.

    First, one of your articles dealt with the fact that there are almost no civil trials in Federal Court anymore. Why the need for such “efficiency” in order to produce a “more or less impartial” jury on the premise that: ” In the real world that is all that should be expected”.

    You as the Judge create the “real world” in your courtroom. You control the degree to which these parties (who have gone to incredible expense as well as blood and tears to get justice), obtain it. Exploding heads occur when artificial rules prevent justice that has been so hard sought.

    The pros of the jury system include the collective experience, wisdom, and viewpoints of the jury. It is irreplaceable – if we want justice.

    The cons of the jury system are that jurors come to the table with biases and prejudices that can completely destroy the open-mindedness and neutrality just results require.

    That is why VD is so very important. It is critical to get jurors who can remain open-minded and receptive. A good VD gets the jury there. I submit that limitations of 20 minutes will leave an awful lot of prejudice and bias on a jury needlessly. You limitation cooperates with the presence of that prejudice and bias on the jury.

    You have the power to make certain that does not happen by allowing the amount of prejudice and bias to be adequately probed, and by further allowing the amount of prejudice and bias seen to determine the needed amounts of time necessary to minimize it. Kindest regards, Dean

  2. Why is there a rush? Jury trials are fairly rare, why is it desirable that they finish quickly?

  3. Vince,

    When you compel, upon penalty of jail, your fellow citizens to serve as jurors, you owe them something more than long winded and invasive questioning about stuff that is none of your business. Lawyers and litigants should expect an impartial jury,but that does not justify something akin to the Spanish inquisition. In my view, there is absolutely no proof that longer voir dire is better voir dire when viewed from the perspective of the People’s business–rather than the perspective of the lawyer’s business.

    All the best.


  4. I tried a capital murder case a couple of months ago. The venire was approximately 80 and included individual voir dire of every juror.
    It was considered a “high profile case” in this area.
    It took four days to select the 12 person, and 4 alternates jury.
    In 16 years as a state trial judge, capital cases are the only ones that have take over one day, with every other one I can think of taking a half day or less.

  5. I am a huge Judge Kopf fan. He is one of the finest, most thoughtful, federal district court judge in the country. He has that rare blend of a brilliant intellect, he is open-minded and deeply grounded in good ole Nebraska common sense. But…. picking a federal criminal jury in two hours where a defendant faces a life sentence is in my view unconscionable. It elevates expediency over justice and fairness. Can it be done- of course it can and too often is. Should it be done? NEVER!!! Jurors come into federal court mostly believing that their work has already been done for them by the Grand Jury. The mere word “Indictment” means to most potential trial jurors that the defendant is guilty because they have been indicted. I know this to be true because in the four federal district courts where I have tried cases I have asked potential jurors this! The same is true about the presumption of innocence and burden of proof. With all dues respect our role as trial judge is to ensure that jurors truly believe and accept that a defendant is 1) not guilty because they have been indicted 2) absolutely not guiltily unless an until the government proves the defendant so beyond a reasonable doubt, and 3) and that jurors are deeply committed to giving each the defendant the “full benefit” of the presumption on innocence. It is simply physically impossible to accomplish this in two hours. Period. It cannot be done by simply mouthing platitudes like “presumption of innocence” and “proof beyond a reasonable doubt” and “Just because the defendant has been indicted by a grand jury doesn’t mean he is guilty.” One must develop thoughtful strategies to ensure than jurors internalize theses concepts – without doing this no defendant in federal court receives a fair trial because the jury selection deck is too stacked against him or her based on well documented believes of potential jurors. I am not 1/10 the trial judge that Brother Kopf is but I invite my dear friend to come watch my jury selection and I do believe he would soften his position on picking a criminal jury in two hours. It can be done in two hours but I respectfully suggest justice require more. And, Rich, I am buying your lunch 🙂

  6. Mark,

    Thanks for the kind words, and the vigorous disagreement.

    Someday, I will come and watch you pick a jury. I will also allow you to buy me lunch and some cheap gin (which is the only kind I drink) to boot.

    I respect your professional and academic interest in the biases jurors unconsciously harbor. Indeed, you are one of the pioneers among judges in seeking to probe and then neutralize those biases. I greatly respect you for that (and for many other things). On the most fundamental level, however, I don’t think you, or anyone else, is entitled to extract, on pain of government sanctions, that level of intimate detail from our fellow citizens. That, dear friend, is where you and I strongly disagree.

    All the best.


  7. Judge,

    Thanks very much. I appreciate your insights.

    With a capital case, I suppose there are other factors at work that a prudent trial judge such as yourself must take into consideration. With the appellate (and federal habeas) nit-picking that goes on in capital cases, a prudent trial judge will likely allow jury selection to go beyond the time that is really needed simply to protect his or her record and bogus ineffective assistance of counsel claims. Incidentally, my good friend Judge Mark Bennett, who just commented, has tried a particularly nasty federal capital case where the death penalty was imposed, and his insights on picking a jury in a capital case would be interesting. For me, capital cases are simply sui generis when it comes to jury selection.

    Anyway, I share your view that for non-capital cases, about a half-day is about all that is truly required to get an impartial jury at least as the Brits and this crank understand the word “impartial”.

    All the best.


  8. I have to concur: here, in CT, we have individualized sequestered voir dire for all jury trials. While the misdemeanor cases take a day or two to pick a jury of two, serious felony trials usually take about 5 – 8 work days to pick a jury of 8 (with alternates) or 14-16 (in some cases).

    I wouldn’t have it any other way. Speed and expedience isn’t – and shouldn’t be – a concern of the defense attorney (and really of the justice system but that’s for another day) when it comes to choosing the individuals who will decide the liberty and freedom of a fellow citizen.

    If I were in the defendant’s seat, I’d feel the rumble of the oncoming train if my jurors were picked inside a day, without in-depth questioning of their biases and pre-conceived notions. I’d want to know everything about them before deciding whether I want them deciding my fate. Spending 20-30 minutes with each person, outside the prying eyes of others seems like the least we can do, especially with juries nowadays so primed and predisposed to convict.

  9. We did an accidental A/B test of lawyer-conducted and judge-conducted jury selection before Judge Atlas here in the Southern District of Texas. You can read about it here, but the gist is that the lawyer voir dire revealed many more people who could not commit to following the law than the judge voir dire did.

  10. Dear Other Mark Bennett,

    Very interesting example. Thanks for sending it.

    Aside from the fact that you didn’t like the composition of the jury where the judge did the voir dire, was your client denied an “impartial” jury or simply a jury that was not to his or her liking? If you believe the jury was not impartial, why do you come to that conclusion?

    Incidentally, I allow lawyer voir dire, but it is typically limited to 20 minutes per side. For more on how I pick a jury, including the unusual orientation procedure I employ, see

    I really appreciate your taking the time to write. All the best.


  11. Why is there a rush?

    Never mind that an innocent man is sitting in jail because he was denied bail (must be guilty if he’s that untrustworthy) or can’t afford it.

    Why innocent say I? Of what has he been convicted, with his trial not even begun? Judge Bennett has some remarks below about presumptions and innocence.

    Nah–there’s no rush. Not for the jury selection–no bail!–and not for the trial itself.

    On the flip side, rather like a high noon showdown, or “settled” law, it’s better that the jury be selected properly than be selected quickly, but there’s no reason to dawdle about the process, either. To this end, it seems to me that there is a middle ground between Judges Kopf and Bennett that can be found primarily by eliminating Judge Kopf’s hard time limit and changing the emphasis from Kopf’s questioning to the lawyers’ questioning. It is, after all, their case, not his.

    Eric Hines

  12. When you compel….

    Your argument certainly is valid from a human engineering, practical perspective. However, it’s important, also, to keep in mind that you’re compelling a man to do his duty, not dragooning him into something untoward.

    I confess I’m unsure what practical effect that bit of idealism has….

    Eric Hines

  13. Dear Gideon,

    Set aside speed and expedience. Think about the government forcing a fellow citizen to speak truthfully and at length about the intimate details of his or her life, together with demanding that our fellow citizen reveal his or her inner most beliefs and fears, upon pain of going to prison? Doesn’t that creep you out?

    All the best.


  14. I must confess I’m a bit stumped at the “intimate details” one might possibly force a citizen to divulge that are so private that they must be put above the concerns of due process: have they ever been arrested or know someone who have? Have they been a victim? Those are the only two that spring to mind, but are used to uncover bias.

    If the State/Government/Republic is in the business of depriving people of their liberty and making a show of doing it while providing “due process”, it isn’t much to ask that those that are co-opted to provide this “due process” are examined to determine if they are capable of providing this process in a a fair and honest manner. I would rather ask 100 “prying” questions of jurors rather than not ask a single and have my client’s fate decided by an unknown.

  15. Dear Gideon,

    I appreciate your point about your client’s interests being predominant. You and I simply disagree on that issue. I believe your client is entitled to an impartial jury, but I also believe that an abbreviated voir dire gives him or her exactly that but no more.

    As for “intimate details,” are you kidding me? I have heard jurors asked to provide all sorts of very intimate details like what medications they take, how much money they make, what church they attend, whether they have ever been sexually assaulted, whether they are politically active, what books they like and don’t like and the list goes on and on and on. For further examples, an interesting take on juror privacy and an even more provocative solution to invasive questioning by lawyers, see Melanie D.Wilson, Juror Privacy in the Sixth Amendment Balance, 4 Utah L. Rev. 2023 (2012), available at SSRN: (free download with free registration with the Social Science Research Network).

    All the best.


  16. Yes, I think we will disagree on this, but I am certainly willing to debate whether certain questions are too invasive or not: medications, income and the church they attend would seem to be irrelevant to their ability to be fair and impartial: their victimization, on the other hand, seems squarely relevant.

    I have downloaded the paper and will begin to read it, although I must confess that the excerpt has already made me roll my eyes once 😉

  17. Voir dire conducted by a judge makes it impossible for the defense to show that the jury was not impartial. So we are left with speculation.

    But assuming that the second panel was not wildly different than the first (and there was nothing that might lead one to believe there was), some people who would have revealed bias under questioning from the lawyers did not do so under questioning from the judge only.

    While most judges might prefer a process that more neatly assures a jury being sworn without appellate issues, your process does sound better than the norm in Federal court. Most lawyers would agree that a process that reveals more hidden biases is better than one that reveals fewer.

    At any rate, your blog provides much food for thought. I have bookmarked it for future reference.

    Welcome to the Practical Blawgosphere.


  18. TOMWB,

    Nicely argued.

    I truly wonder whether what you see as bias is the same thing as what I see as bias. But, that’s a discussion for another day.

    All the best.


  19. Quite likely, but Judge Atlas’s view of bias is probably a lot closer to yours than it is to mine, and she granted the challenges to the jurors in the first panel.


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