With Hernandez’s first murder trial underway, scores of potential jurors have started appearing at Bristol County Superior Court to prepare for empanelment for this highly publicized trial. Hernandez’s first murder trial (for the murder of Odin Lloyd) began on Friday, January 9th and is expected to last several weeks. The double homicide prosecution in Suffolk County has been pushed off till later in the year, to allow Hernandez’s defense team an opportunity to complete the first trial this month.

The Significance of the Jury Selection Process
The jury selection process is one of the most important stages of a trial for both the state and the defendant. Despite the public’s perception of this trial stage, the jury selection process can often be one of the most complicated and most thought-provoking stages for litigators – especially with the enactment of a new law that allows attorneys to now question potential jurors directly (to take effect next month). But because the actual interview and selection process happens quietly at the judge’s bench and through written questionnaires, most jurors have very little awareness of what goes on at this stage, and are more likely frustrated by the lengthy wait times and constant questioning.

It is sometimes possible for experienced attorneys to predict whether a verdict will be returned guilty or innocent simply by examining the composition of the jury panel. In fact, the jury selection process is such a critical strategic process that lawyers sometimes hire a professional consultant with expertise on jury composition and profiling in order to assist with selecting the right jurors to sit for the trial. To illustrate the role of the jury selection process in the outcome of a trial, let’s take a look at the Aaron Hernandez trial and the different factors that each party (and the judge) must weigh throughout the process.

The Sixth Amendment Right to an Impartial Jury
As in all criminal trials, Aaron Hernandez has a Sixth Amendment right to have his case decided by an impartial jury. The actual panel of jurors who will hear the case are selected by an individual interview process from a larger body of potential jurors known as the jury venire (Note: not the “Grand Jury”). The jurors in the venire typically receive a notice in the mail months before the trial date informing them of their duty to appear at a particular courthouse in their district to serve jury duty. When the jurors appear on the scheduled day, they are gathered together by court personnel, assigned numbers, and escorted from one courtroom to another until they are “selected” for a trial (or to serve as Grand Jurors). We refer to this selection process as “empanelment.” In the case of Hernandez’s trial, 1000 prospective jurors were summoned to the Bristol County Superior Court, from which only 18 jurors will be selected to preside over his trial.

The Mechanics behind the Jury Selection Process
Why does Hernandez need a jury pool of 1000 individuals? The answer lies in both the circumstances of Hernandez’s trial as well as in the actual mechanics behind jury selection. As is most often the case, the larger pool of jurors are typically given short questionnaires about their personal characteristics, which they complete and then submit to the court for review. The court, in turn, produces copies of the completed questionnaires to both the defense and the prosecution. The two parties – as well as the court – carefully review each questionnaire and flag any and all jurors that each party believes may be biased for or against them. The attorneys and the court then convene and begin to call the jurors to the judge’s bench one by one for a quick interview by the judge in the presence of the lawyers (sometimes the judge permits the lawyers to ask the jurors questions directly).

After each interview, the juror is asked to step back while the court and the litigators deliberate as to whether this juror should be selected or “excused.” There are two ways to excuse jurors: 1) for cause, and 2) through preemptive strikes. A juror may be excused by the court for cause if the court (after deliberating with the lawyers) is persuaded that a juror will likely be incapable of deciding this case on the facts alone and without any partiality for either party. A preemptory strike, in contrast, is a request by either party to dismiss a juror without having to provide any justification for the strike. Each party, however, is only allowed a small number of strikes as determined by statute, and may not strike a juror on the basis of race or sex.

Difficulties in Selecting an Impartial Jury for Hernandez
Returning to the Hernandez trial, it may now be more understandable as to why the court needed to summon 1000 potential jurors for this one murder trial, whereas other trials typically have a jury pool of 100 jurors or less. As I explained before, the reason is both due to Hernandez’s publicity as well as the mechanics of selection. The court has an affirmative duty to ensure that all biased jurors be excused from the jury pool. But this is not an easy task when it comes to someone as renowned (whether for good or ill) former NFL Patriots star Aaron Hernandez. And Hernandez’s fame for his NFL history is compounded even more by the extremely heavy publicity that he has received as a result of the prosecution in both this murder trial, as well as in the double homicide in Boston, and even the allegations arising out of other states like Florida.

Considering all of these factors, it is very likely the case that many – if not most – of the 1000 jurors summoned will already be predisposed either in favor or against Hernandez. And now add on the negative publicity that has attached itself to both the NFL and NFL players in general over the last several months due to allegations of domestic abuse against several of its players, and now it is almost impossible to assemble an impartial jury to hear Hernandez’s murder trial. Hence the large number of potential jurors.

Alternative Solutions for a Biased Jury
Increasing the jury pool size is only one way to protect a defendant from facing a biased jury. Another remedy used by courts includes summoning potential jurors from other counties or jurisdictions. Doing so would decrease the likelihood of bias since those jurors have probably been less exposed to the publicity surrounding the case. But in a case as publicized and as heavily followed as Hernandez’s murder trials, this is not likely to be an effective solution.

New legislation, however, has recently been enacted in Massachusetts that will provide stronger protection against bias at least for Hernandez’s double homicide trial in Boston later this year. Scheduled to take effect in February, the new legislation allows lawyers to ask the jurors their own questions – either directly or through the judge – in an effort to better gauge each juror’s thoughts on the case. Massachusetts lawyers will be able to take advantage of this new law both to exercise their cause challenges and preemptive strikes more carefully, as well as to get a stronger impression of each of the jurors impaneled. Unfortunately for Hernandez’s defense team in this Bristol trial, however, they have only a thousand questionnaires and the interviews conducted by the judge. the