When picking a jury, what are the smart lawyers really trying to do?

Of course, all lawyers say they want the most fair and unbiased jury possible.  The judge repeatedly tells the jurors to be fair to both sides and in our justice system, that idea of fairness is probably the most basic, important aspect.  If nothing else, we want our juries to be fair and not swayed by anything beyond the evidence presented to them in the trial.

But is this what the lawyers want?

No.

As a lawyer, I’m an advocate for my client and want a jury that will give my client the bast shake possible.  If the lawyer is a prosecutor, this gets a little sticky since the prosecutor’s ethical duty is to seek justice.  Which could mean he would want a fair jury.  The defense lawyer’s ethical duty is to get his client off.  Truth and justice play no part in what a defense lawyer is required to do for his client.  As a defense lawyer, I want a jury that is as biased for my client as possible.

During the jury selection I will certainly ask the usual questions of prior experience, associations, possible racial bias, etc.  But I spend little time on these questions.  Why?

It’s been my experience that if a juror really wants to be on the jury, they can figure out what the lawyers want by the questions they ask.  The juror simply frames their answers to make it look like they’re fair minded.  So I’m not sure that the answers I get to the routine questions tell me a lot about the juror.  I can try different questions in an effort to pry underneath the surface, but people can usually fake their way onto a jury, if they really want.

Instead, I use jury selection as a time to accomplish two important goals:

1.  Humanize my client.

I’m defending  someone accused of a horrible crime.  Maybe it’s murder or sexual assault, or burglary of a home.  By the fact the client has been charged and is in a trial, makes him look guilty.  I want the jury to start to see the accused as a human being who may not be guilty.  If I can develop sympathy for the accused, the jury may give him a break or view the evidence in a more favorable light toward the accused.

2.  Sell the theory of the defense.

Good defense lawyers, know they don’t have to prove anything, but they must have a “theory of the defense.”  Meaning, an alternative narrative to the one presented by the prosecution.  Maybe it’s a complicated as blaming someone else for the crime.  Maybe it’s as simple as saying the government can’t prove one of the elements of the crime so the accused must be found not guilty.  When I meet the jurors for the first time, it’s an opportunity for me to introduce my “story”  to them and try and sell them on my “theory” of the case.  For instance, if the defense is self defense, I will question each juror about self defense and try to get them to remember a situation where they had to defend themselves–putting them in the same shoes as the defendant when he testifies later about his self defense.

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What are the lawyers looking for and why do they ask the questions they do?

Prior to starting the trial, a large group of prospective jurors will be assembled in the courtroom.  The lawyers will ask questions of each juror and will either accept the person for the final jury or “strike” them from the panel to get a final group of twelve.  Here’s what’s going on:

1.  The lawyers are looking for past experiences that may bias the juror.

If the person has been the victim of any crime, particularly the same type as the defendant is accused of, it could cause the juror to be upset and want to “take-out” their anger or trauma on the accused person, even if the evidence shows the accused is not guilty.  Or from the prosecutor’s viewpoint,  if the juror was treated badly by the police in the past, they may want to “get even” by not believing police witnesses in the present trial.

2.  The juror’s associations may taint the way they view the evidence.

If the juror was a former cop or law enforcement, they may be biased against the accused simply because of their previous work and be unwilling to listen to evidence that may show the defendant not guilty.  Or perhaps the juror has worked for a political organization that has a different agenda than law enforcement and the person will not listen to the evidence fairly because of their political leaning.  I’ve had jurors say the justice system is so corrupt, in their opinion, that they’d never find anyone guilty even if the evidence showed the defendant’s guilty beyond a reasonable doubt.  Sometimes, friends and family are involved in organizations or jobs that have caused the juror to develop biases one way or another.

3  The juror may be biased against either side because of racial, ethnic, or religious reasons.

Most jurors, in my experience, no longer say things like, “I don’t trust any black people.”   But they still harbor those feelings.  It’s difficult, but lawyers try, through a variety of questions, to pry underneath the surface to discover if there are any biases like these.

4.  Does the juror have the courage to make difficult decisions?

Both sides worry about this.  The prosecutor will ask the jury to find another human being guilty–knowing that will cause a severe penalty, maybe even death in some states.  The defense will ask the jury to find the client not guilty, even though the crime may be a vicious and violent one in which everyone would like to see the perpetrator found and convicted–even if it isn’t the accused person in the trial. Can the juror do that?  I usually ask the question exactly as I’ve written it here.  It causes most people to stop and think for awhile.

5.  Can the juror follow the law and evidence?

Sounds simple but is difficult in practice.  For instance, the law says that the accused person is presumed innocent and doesn’t have to prove anything.  The government must prove guilt beyond a reasonable doubt.  What if the defendant chooses not to testify in their own defense?  As humans, we always want to “hear the other side of the story.”  If the jury doesn’t hear from the defendant, can they still find him not guilty if they feel the government has failed to prove him guilty?

Next post, we’ll look at what lawyers are really trying to do in jury selection!

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We all know that every accused person has a right to a jury trial.  It comes to us in America from centuries of English common law and our constitution.   When a person is on trial for a capital offense and life in prison or the death penalty can result from the jury’s decision, selecting the people who serve on the jury becomes critical.

If a person is charged with a felony, they have a right to a jury of twelve people.  All twelve have to agree unanimously that a defendant is guilty before they can be found guilty.  Typically, at the beginning of a trial about twenty people will be brought into the courtroom for selection of the final twelve.  They are originally recruited in a variety of ways: voter records, driver’s licenses, addresses, etc. in an effort to get an accurate cross-section of the community.  When I first started tying cases in Minnesota, the African American population was small.  As a result, when I defended black clients, the juries were often white, suburban people.   I don’t think you can immediately assume they were biased against a black defendant, but it sure made the client nervous.  As our constitution reads, each of us has a right to a “jury of our peers.”

Today, the judiciary makes significant efforts to include all socio-economic and racial groups in the jury pool for selection.  It’s not perfect but is better than years ago.

Once the trial starts, if it’s a murder case, the prospective jurors are questioned one at a time without the other potential jurors present.  In any other felony, twelve people are initially called out of the large group, seated in the jury box, and questioned one after another.

Each lawyer has the opportunity to ask their own questions.  Both prosecutor and defense lawyer ask their questions of one juror at a time.  Either lawyer has a number of automatic “strikes” which mean they can kick-out a prospective  juror without stating a reason why.  They can both “challenge” any juror for “cause.”   The lawyer must state the reason out loud why he thinks the juror would not be fair.  It could be because they were a victim of a similar crime as the one being tried, they’ve expressed something that shows they’re already biased against one side or the other, or something in their background makes them biased.  If the judge agrees, the juror is released.  If the judge doesn’t agree, the lawyer must then use a “strike” or be stuck with a disgruntled juror that he tried to kick-off.

Can you get out of jury duty?

Should you get out of jury duty?  This is a pet peeve of mine!!  So often, I hear people complain that government doesn’t work anymore and that each of us can’t change anything.  But when offered the opportunity to serve in the “government”–that is, the judiciary as a juror, so many people try to get out of it.  Why don’t they understand that by serving, they are playing a critical, important role in the government???

Let me know what you think.

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