NCBE MBE

## Learning Outcomes

This article explains how federal civil juries are selected, structured, and modified during trial for MBE purposes, including:

- the default federal rules on jury size, unanimity, and the minimum number of jurors needed to return a valid verdict;
- the mechanics of voir dire, the distinction between for‑cause and peremptory challenges, and strategic exam clues about when each is appropriate;
- statutory limits on the number and allocation of peremptory challenges, especially in multi‑party cases, and how courts exercise discretion to equalize sides;
- constitutional constraints on discriminatory peremptory strikes under Batson, with emphasis on race and gender and the three‑step challenge framework;
- the court’s authority to excuse jurors for good cause before and during deliberations, the role of alternate jurors, and when a mistrial is mandatory;
- how and when parties may validly stipulate to fewer jurors or a non‑unanimous verdict, and the consequences of juror loss or invalid stipulations on appeal;
- common MBE trap patterns involving improper five‑person verdicts, unauthorized substitutions during deliberations, or judicial orders altering unanimity without party consent.

## MBE Syllabus

For the MBE, you are required to understand jury trials in federal civil actions, with a focus on the following syllabus points:

![Federal civil voir dire challenges divided into for-cause and peremptory strikes, with unlimited for-cause challenges and three peremptories per side subject to Batson limits.](https://static.pastpaperhero.com/images/ncbe-mbe-jury-trials-selection-and-composition-of-juries_00.png)

_Jury challenge types in federal civil selection include reason-based for-cause removals and limited peremptory strikes barred when based on race or gender._

- Federal rules on jury size (minimum, maximum) and the requirement of unanimity.
- The process of voir dire, including for-cause and peremptory challenges and their limits.
- Allocation and number of peremptory challenges, especially in multi-party cases.
- Constitutional constraints on discriminatory use of peremptory challenges (race and gender).
- Rules on excusing jurors for good cause, including during deliberations.
- Use of stipulations to modify default rules on jury size and unanimity and the consequences of juror loss.

## Test Your Knowledge

_Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, look more closely at that area during your revision._

1. In a federal civil trial, how many jurors must be present to return a verdict if the parties have not stipulated otherwise?
2. Which of the following is true regarding peremptory challenges in federal civil jury selection?
   a) They may be used to exclude jurors for any reason, including race or gender.
   b) Each side is entitled to an unlimited number.
   c) They may not be used to exclude jurors solely on account of race or gender.
   d) They may only be used after all for-cause challenges are exhausted.
3. If a juror becomes ill during trial and is excused, what is the minimum number of jurors required to return a verdict in a federal civil case (absent stipulation)?
4. What is the effect if the parties stipulate to accept a verdict from fewer than six jurors in a federal civil trial?

## Introduction

Jury trials are a central feature of federal civil litigation. The Federal Rules of Civil Procedure, together with a few federal statutes and constitutional doctrines, regulate both:

- How jurors are selected (voir dire and juror challenges), and
- How the jury must be composed at the time it returns its verdict (size, unanimity, and juror excusals).

MBE questions in this area are often highly technical. You are expected to know the numerical limits (for example, “3 peremptory challenges per side”), the default rules (for example, “verdict must be unanimous”), and the circumstances under which those defaults can be modified by stipulation or court order.

> **Key Term: Jury Size (Federal Civil)**
> In a federal civil trial, the jury must begin with at least six and no more than twelve members. Unless the parties stipulate otherwise, the verdict must be unanimous and returned by a jury of at least six members.
> **Key Term: Unanimous Verdict**
> In federal civil actions, the default rule is that all jurors who participate in the verdict must unanimously agree, unless the parties stipulate on the record to a non-unanimous verdict.
> **Key Term: Voir Dire**
> Voir dire is the process of questioning prospective jurors to uncover bias or other grounds for disqualification and to inform the parties’ use of for-cause and peremptory challenges.

### Jury Size and Unanimity

In federal civil trials, Rule 48 governs the size of the jury and the requirement of unanimity:

- The court must seat **at least six and no more than twelve** jurors.
- Unless the parties stipulate otherwise:
  - The verdict must be **unanimous**, and
  - The verdict must be returned by **at least six** jurors.

Once the trial begins, the court has some flexibility about excusing jurors, but it may not permit a verdict from fewer than six jurors unless the parties stipulate on the record to accept a verdict from fewer jurors.

> **Key Term: Good-Cause Excusal**
> A good-cause excusal is the court’s removal of a juror during trial or deliberations for a legitimate reason—such as illness, family emergency, or inability to perform juror duties—based on Rule 47(c).

The court may excuse a juror for good cause at any time, including during deliberations. As long as at least six jurors remain and unanimity is preserved (absent stipulation), the verdict is valid.

MBE traps often involve a judge insisting on a 5‑person verdict without a stipulation, or a judge ordering a non-unanimous verdict on the court’s own initiative. Both are improper under the federal rules.

### Excusing Jurors and Alternate Jurors

During trial or deliberations, the court may excuse a juror for good cause—common examples include serious illness, a family emergency, or discovery that the juror concealed a disqualifying bias during voir dire. The critical MBE questions are:

- How many jurors must remain?
- Can a juror be replaced once deliberations begin?

If the number of jurors falls below six, the court has only two options:

- Declare a mistrial, or
- Accept a stipulation by the parties, on the record, to proceed with fewer than six jurors.

> **Key Term: Alternate Juror**
> An alternate juror is a juror who hears the evidence and can replace a regular juror who is excused **before** deliberations begin. In federal civil trials, once the jury retires to deliberate, there are no “alternates”: all remaining jurors deliberate unless excused, and substitutes may not be added.

Historically, courts designated “alternate jurors” and excused them once deliberations began. Under current rules, the emphasis is that **every juror who hears the case and is not excused participates in deliberations**; the court may not insert a new juror into an ongoing deliberation.

> **Key Term: Good-Cause Excusal**
> A good-cause excusal permits the judge to remove a juror whose continued service would be unfair or impractical, such as for illness, misconduct, or inability to deliberate, so long as at least six jurors remain unless the parties stipulate otherwise.

If a juror is excused during deliberations and the remaining panel has at least six members, the court may order the reduced jury to continue deliberating and return a unanimous verdict. No substitution is allowed once deliberations have begun.

If there is no stipulation and fewer than six jurors remain, the court must declare a mistrial.

> **Key Term: Stipulation**
> A stipulation in this context is an on-the-record agreement by all parties to modify a default jury rule—for example, to accept a verdict from fewer than six jurors or to allow a non-unanimous verdict.

### Peremptory and For-Cause Challenges

Jury selection in federal civil trials typically proceeds through voir dire, followed by two types of challenges:

- Challenges **for cause**; and
- **Peremptory** challenges.

> **Key Term: For-Cause Challenge**
> A for-cause challenge is an objection to a prospective juror based on a specific reason—such as bias, relationship to a party, or inability to follow the law. For-cause challenges are unlimited in number but must be justified to the court.

Grounds for a for-cause challenge include:

- A close relationship to a party, lawyer, or key witness.
- A financial interest in the outcome.
- An admission of bias or prejudice.
- Inability or unwillingness to follow the court’s instructions or apply the law.

If a juror is clearly disqualified and the court refuses to remove the juror for cause, that can be reversible error if the juror ultimately serves, because each party is entitled to an impartial jury.

> **Key Term: Peremptory Challenge**
> A peremptory challenge is a limited right to strike a prospective juror without giving a reason, subject to constitutional limits that prohibit strikes based solely on race or gender.

Under federal law (28 U.S.C. § 1870):

- **Each side** in a civil case is entitled to **three** peremptory challenges.
- All plaintiffs together constitute one “side”; all defendants together constitute the other “side.”
- When there are multiple parties on a side with essentially adverse interests, the court **may** grant additional peremptories and must allocate them to ensure each side has the same total number.

Peremptory challenges may be exercised for almost any non-discriminatory reason—for example, perceived hostility toward corporations, negative experiences with lawsuits, or body language suggesting bias.

#### Constitutional Limits: Batson in Civil Cases

Even though peremptory strikes need no explanation in ordinary circumstances, they are subject to constitutional limits. The Equal Protection Clause, as applied in civil cases, prohibits the use of peremptory challenges to exclude jurors solely because of race or gender.

> **Key Term: Batson Challenge**
> A Batson challenge is an objection asserting that an opponent’s peremptory strike was based on race or gender. It triggers a three-step process: prima facie showing, race‑ or gender‑neutral explanation, and judicial determination of purposeful discrimination.

The Batson framework (originally developed in criminal cases and extended to civil cases) operates as follows:

1. **Prima facie showing**: The objecting party shows facts suggesting a race- or gender-based pattern (for example, striking the only Black juror).
2. **Race/gender-neutral explanation**: The striking party must articulate a facially neutral reason for the strike (such as prior litigation history, occupation, or demeanor).
3. **Judicial determination**: The court decides whether the proffered reason is genuine or a pretext for discrimination. If it is pretextual, the strike is denied.

Peremptory strikes based solely on race or gender are impermissible. The Supreme Court has not definitively prohibited strikes based solely on religion on the MBE, so focus on race and gender.

> **Key Term: Voir Dire**
> During voir dire the court (and often counsel) questions potential jurors to uncover disqualifying bias and to gather information for exercising for-cause and peremptory challenges.

Counsel may not question jurors in a manner designed to pre-commit them to a particular outcome (for example, “If I show you the defendant acted negligently, you’ll award at least \$1 million, right?”), but they may explore attitudes and experiences that bear on impartiality.

### Stipulations and Non-Unanimous Verdicts

The federal rules establish default requirements—unanimity and a minimum of six jurors—but allow the parties to alter these by stipulation.

- Parties may stipulate to accept a **non-unanimous** verdict (for example, a 5–1 vote).
- Parties may stipulate to accept a verdict from **fewer than six jurors** (for example, five or even four), even if the trial began with six or more jurors.

The stipulation must:

- Be made **on the record** (or in a written filing), and
- Occur **before** the verdict is returned.

Once parties stipulate, they are generally bound and may not later appeal on the ground that the verdict came from fewer jurors or was non-unanimous.

The court may not unilaterally order a non-unanimous verdict or a verdict by fewer than six jurors when the parties have not stipulated.

### Worked Example 1.1

A federal civil trial begins with eight jurors. During deliberations, two jurors become ill and are excused. The parties stipulate on the record to accept a verdict from the remaining six jurors. The jury returns a unanimous verdict for the plaintiff. Is the verdict valid?

> **Answer:**
> Yes. The verdict is valid because (i) at least six jurors (the minimum allowed by Rule 48) returned the verdict and (ii) the parties stipulated to accept a verdict from fewer than the original eight jurors. Unanimity among the remaining six satisfies the default unanimity requirement.

### Worked Example 1.2

During jury selection in a federal civil trial, the defendant uses a peremptory challenge to strike the only Black juror from the panel. The plaintiff objects, arguing the strike is based solely on race. What must the court do?

> **Answer:**
> The court must conduct a Batson inquiry. First, the plaintiff’s objection establishes a prima facie case of racial discrimination (striking the only Black juror). The court must then require the defendant to provide a race‑neutral explanation for the strike. If the court finds that explanation pretextual and the strike is based solely on race, it must deny the peremptory challenge and seat the juror.

### Worked Example 1.3

A federal civil case is tried to a six-person jury. After closing arguments but before deliberations begin, one juror suffers a medical emergency and is excused for good cause. The defendant refuses to stipulate to proceed with five jurors. The court orders the remaining five jurors to deliberate and return a unanimous verdict. They find for the plaintiff. Is the verdict proper?

> **Answer:**
> No. Absent a stipulation, Rule 48 requires a verdict to be returned by at least six jurors. Because the defendant refused to stipulate to proceed with five, the court could not order a five-person verdict. The proper remedy was to declare a mistrial. The five-juror verdict is invalid and would be reversed on appeal.

### Worked Example 1.4

In a federal civil diversity case, there is one plaintiff and three defendants. The plaintiff and the defendants are all represented by separate counsel. How many peremptory challenges are available?

> **Answer:**
> By statute, each “side” is ordinarily entitled to three peremptory challenges. All defendants together form one side and must share three peremptories; the plaintiff, as the opposing side, also gets three. The court has discretion to grant additional peremptories if the defendants’ interests are essentially adverse, but it must ensure that each side ends up with the same number.

### Worked Example 1.5

The parties in a federal civil case sign a written stipulation (filed with the court) agreeing that “a verdict may be returned by at least five of the six jurors.” The jury later returns a 5–1 verdict for the defendant. The plaintiff appeals, arguing that the verdict is invalid because it is not unanimous. How should the appellate court rule?

> **Answer:**
> The appellate court should affirm. The parties validly stipulated on the record to accept a non-unanimous verdict (5–1) from a six-person jury. Rule 48 expressly allows modification of the unanimity requirement and the minimum number needed for a verdict by stipulation. The plaintiff cannot complain on appeal about a verdict in the form to which he agreed.
>
> **Exam Warning:**
> The MBE often tests whether parties can stipulate to fewer than six jurors or a non-unanimous verdict. Remember: Without an on-the-record stipulation, a verdict from fewer than six jurors or a non-unanimous verdict is invalid in federal civil trials.
>
> **Revision Tip:**
> Always distinguish between for-cause and peremptory challenges. For-cause challenges are unlimited but must be supported by a specific, legally sufficient reason; peremptory challenges are limited in number and may not be exercised solely on the basis of race or gender.

## Key Point Checklist

_This article has covered the following key knowledge points:_

- Federal civil juries must be composed of between 6 and 12 jurors at the start of trial.
- Unless the parties stipulate otherwise, verdicts must be unanimous and returned by at least 6 jurors.
- The court may excuse jurors for good cause at any time, including during deliberations; if fewer than 6 remain and there is no stipulation, a mistrial is required.
- Once deliberations begin, no new jurors may be substituted; all remaining jurors deliberate unless excused.
- Voir dire is used to uncover bias and to inform the use of for-cause and peremptory challenges.
- For-cause challenges are unlimited and require a specific reason such as bias, relationship, or inability to follow the law.
- Each side in a federal civil case normally has three peremptory challenges; multiple parties on a side ordinarily share them.
- Peremptory challenges may not be used to exclude jurors solely on the basis of race or gender; Batson challenges enforce this rule.
- Parties may stipulate on the record to accept a verdict from fewer than six jurors or to a non-unanimous verdict; such stipulations are binding.
- A verdict ordered by the court from fewer than six jurors, or a non-unanimous verdict, without a stipulation, is invalid and will be reversed.

## Key Terms and Concepts

- Jury Size (Federal Civil)
- Unanimous Verdict
- Voir Dire
- For-Cause Challenge
- Peremptory Challenge
- Batson Challenge
- Alternate Juror
- Good-Cause Excusal
- Stipulation


Jury trials - Selection and composition of juries