The Constitution provides that an accused person is entitled to a “jury of their peers.”  Today, that means a jury of twelve people (usually an extra person is added as an “alternate” juror in case one of the original twelve get sick or can’t serve) who must decide if the person has been proved guilty or not.  In a criminal case, the decision must be unanimous—meaning that all twelve people must decide if the prosecution has proved their case.  If one or more disagree, this is called a “hung jury” and no verdict or decision will be reached.

Or, an accused person may choose to waive a jury trial and have a judge decide the case without a jury.  That means only one person, the judge, will decide if the prosecution has proved their case beyond a reasonable doubt.

Why would a defendant choose one or the other?

Generally, most defendants choose a full jury.  The judge who has been assigned the case for trial will often know many things about the case or defendant that shouldn’t be brought up in trial.  And even if the judge tries hard to be fair, he has still heard the other information that may affect the decision.  A jury is carefully screened from extraneous information that doesn’t pertain to the facts in the trial.  Some believe that the jury, therefore, can be more fair because they are hearing the case for the first time in the trial.

But what if the defense is very technical?  Or is a legal defense rather than a factual one?

In that case, a judge may be the better choice.  I had a case a few years ago where I was representing a young man accused of killing another man by beating him to death with a shovel.  After the killing, the defendant tied the body to a car battery and sank it in a local stream.  Several weeks later, the body surfaced and was discovered.  The Medical Examiner did an autopsy but couldn’t establish a cause of death since the body was so decomposed.  The defense I used was that since the ME couldn’t say what caused the death, it could have been by accident when the victim fell and hit his head on a rock—that may have caused the death rather than the beating with a shovel.  This was a legal issue that only a judge could decide.

I’ve often advised clients that if they’re guilty, they should demand a jury trial.  Sometimes, a jury will be affected by the personality of the accused and give him an extra chance—even though the judge has warned the jury not to let prejudice or favoritism affect their thinking.  Often, judges are cynical because they’ve seen so much where juries are fresh and the trial facts are new to them.

If any of you have been on a jury, what are your thoughts?  If you were accused of a crime, would you choose a jury or a judge?

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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.

The post What Are Lawyers Really Doing in Jury Selection? appeared first on Colin T. Nelson.

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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