How to Select A Jury
How to Select A Jury
Jury selection compromises probably the most crucial art of the trial lawyer in civil and criminal cases. You can possess the most compelling fact scenario imaginable but without receptive jurors, you will lose before you begin- in essence, you will be running on empty. Jurors who are significantly predisposed for any reason will neither listen to nor consider the evidence in any way consistent with your position- not because they don’t want to but they can’t. Their mindset has already blocked any information inconsistent with their strongly held beliefs. Therefore, our task as trial lawyers is to identify then strike, either for cause or by pre-emptory strike, those that tend to be unreceptive to your case.
In criminal cases it is important to know that only the rarest of jurors truly presume your client innocent, although every person will proclaim they do and actually believe in their heads they do, but they don’t. Our job in jury voir dire is to begin the daunting task of putting them in a neutral place and to find out which ones cannot or do not land there when we finish voir dire. How do we start?
First, I normally, through the questioning process, begin to explain to them why jurors should always presume someone innocent- not because I say so but because a grand jury decides a case usually entirely upon hearsay. Once jurors discover that a grand jury never decides the question of guilt or innocence, meets in secret, only takes a majority vote and the accused is neither invited nor told the GJ is meeting, jurors begin to perk up!
When they further learn that the average before the grand jury takes about five minutes to consider, and that the only person they usually hear from is a police officer and not a victim, they really start to see a light. When they learn that no defense lawyer is there to cross-examine the officer and test the information or present another side, they are primed to consider your client innocent until and unless the Prosecutor proves the hearsay allegations beyond a reasonable doubt. When they learn that the indictments are pre-printed in the DA’s office and delivered by the DA handling the Grand jury, they really open up for making sure the DA proves his case. And we remind them that they take an oath to do just that.
If I can find a former grand juror in the venire I will ask them these questions in a somewhat leading way. Otherwise I will just ask the questions in a way that I get the information out.
However, every trial is case specific. Accordingly, we have to see if this is a case that they are the right jurors to serve on. For example, you would not put a person who has had a family member murdered within the last 6 months on your jury, normally if it is a murder case. You would not leave a nun on in a case involving abortion. You would not leave a person on in a robbery case if that person works at a bank that was robbed recently or perhaps ever. You would not leave a person on if they were the closest friends with the victim or district attorney or perhaps the judge. You would not leave a person that has been raped on a sex case or a child care worker on a child sex case absent extraordinary circumstances. These people might want to be fair but in certain cases it is asking just too much of them.
We ask questions that are case specific not to attempt to win our case there, but to make sure we identify jurors with open minds. In an ID case, we would want to know for example if these jurors believe that identification testimony is really reliable. We may want to ask if they have ever been mis-identified or if they have mistakenly walked up to someone they thought they knew but it was the wrong person. We may want to explore how many people have doubles in the world.
The questions we ask are crucial. It is our job to be active listeners and be curious about the people we are questioning. What do they think about paid “experts?” Would they listen to the court’s instructions and consider their testimony appropriately? What about police officers; in some cases it is more important than in others. If the police officers credibility determines the case, we need to know their relationships and views re them and if the jurors would tend to believe a police officer in any case, especially if this testimony conflicts with another persons. If so, why, or why not?
The most important thing we can do is create a safe atmosphere so that we encourage the prospective jurors to talk to us openly and honestly in public- no easy task but necessary if we are to select jurors that will give us a fair shot.