U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK
JUDGE L AURA T AYLOR S WAIN
The following instructions apply to all civil and criminal matters pending before Judge Swain on
and after May 27, 2014.
Instructions to Counsel Concerning Jury Selection
The following is a general description of the struck panel method by which the jury will be
selected in proceedings before Judge Swain. The circumstances of individual cases may require
variations as a result of factors such as the need for larger panels or the need for more individual
questioning in the robing room.
The Court will conduct a voir dire of a number of panelists computed as follows in a
criminal case: the number of jurors to be selected (twelve in a criminal case), the number of
alternates (generally two), and the number of peremptory challenges. See Fed. R. Crim. P. 24(b)
and (c). Thus, in a single defendant criminal case in which the defendant has ten and the
Government six peremptory challenges, plus one challenge each with respect to alternates, we will
voir dire 32 panelists.
In a civil case, the Court will voir dire a sufficient number of jurors to provide for the
number of jurors to be selected (generally eight), and the number of peremptory challenges
(generally three for each side), for a total number of fourteen. See Fed. R. Civ. P. 47(b) and 48, and
28 U.S.C. § 1870.
During voir dire, some jurors may be excused by the Court for cause. If any prospective
jurors are removed for cause, they will be replaced as necessary so that there is a full panel before
any peremptory challenges are exercised. Voir dire is generally conducted in three phases - the
reading of questions to the entire venire, elicitation of non-sensitive bibliographic and other
information from panel members in open court, and robing room follow-up on issues that could
adversely influence other jurors and particularly sensitive information.
After we have voir dired the requisite panelists, the judge and counsel will adjourn to the
side bar or the robing room. (The defendant(s) in a criminal case and the parties in a civil case are
permitted to be present unless their presence is waived.) The first order of business will be to
determine whether the parties believe there are any additional challenges for cause. If there are any
challenges for cause, any one removed will be replaced by another panelist being placed in that slot,
so that there is a full panel before any peremptory challenges are exercised.
All peremptory challenges are exercised in the robing room and the consequence of
challenging any panelist is that all other panelists on the list move up one spot.
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In a civil case, plaintiff exercises the first challenge and then the defendant, and the parties
proceed in that fashion until all the peremptories are exhausted. In a single defendant criminal case,
the defendant exercises two challenges and the Government one for four rounds, then each side
exercises one challenge for two rounds, making a total of ten and six.
A party may waive its right to challenge, but may not reserve. You may not say, “Well, we
will pass this time and take two the next time.”
If both parties pass on any one round, the selection process is at an end.
Challenges may be made to any of the panelists regardless of where that panelist appears in
the array.
When both sides have exhausted their peremptory challenges, the first 8 (in a civil case) or
12 names (in a criminal case) unchallenged constitute the jury.
After that, in a criminal case, each side has one additional challenge which is exercisable
only with respect to the alternates, who are selected from the remaining unchallenged panelists after
the jury has been selected.
Attorneys sometimes say that they would like more of an opportunity to match a name in
their notes with a face. That is perfectly understandable. If during the course of the exercise of the
challenges you wish to return to the courtroom, we will all go back to the courtroom to enable this
to be done.
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