USING JURY SELECTION
TO REVERSE THE MOMENTUM TO CONVICT
By Steve Hayne
For almost eight centuries trial by jury remains
the best, safest, surest, and perhaps the only bulwark to protect the basic rights of the average citizen. It is the "Lamp of Liberty". -Joseph T.Karcher (1869)
Joe knew what he was talking about. The best protection against a government on the rampage is to throw up the "fence of liberty" between the accused and his accusers: A fair and impartial jury. The trick of course, is finding those "fair and impartial" jurors, especially in the face of unrelenting and highly critical media attention on drunk driving. Do such jurors even exist? If so, how do we find them?
If we were to be honest, few of us would claim much affection for voir dire. It is an uncomfortable setting; a group of trapped strangers, being asked all manner of personal and private questions. Too often, lawyers and jurors alike, squirm and wish it would end, each mistrustful of the other's power.
Don't get me wrong, I love trial work. As long as we have jury trials, I will serve out my career and wander off with a head full of happy memories.
But…I have a confession to make. I have always hated voir dire. Despite 33 years of trying to like it, I have hated it. Oh, I have read all those manuals and treatises on how to do it (often written by people who couldn't possibly have picked any juries), been to seminars, watched and tried to imitate the great ones (with disastrous results), have written articles and given numerous speeches to other lawyers on how to do it. I still hate it.
Over a quarter of century, I've spent thousands of hair-pulling hours thinking about it and hundreds more miserable hours actually doing it. Despite my history, I cling to a dream: the perfect voir dire. In this dream, skeptical jurors become trusted friends, the prosecutor glares with envy, the client beams with smug confidence, and the silken-robed father/mother figure lurking above actually smiles at my amazing display of talent and skill.
In this dream, I am completely comfortable, prepared and confident; no longer consumed with anxiety over unfinished tasks, un-served subpoenas, un-filed motions. As the jurors file in, they are an obviously warm and gregarious lot; in touch with their feelings, ready and willing to become intimate. In this dream, I have even managed to gain access to the top secret, jealously guarded Judge's Arbitrary Secret Rules of Jury Selection (which of course change from day-to day and judge-to-judge on a random and unpredictable basis).
I have my list of "never-do's" memorized, and not once do I ask repetitious, boring, offensive, irrelevant, political, religious, legal, gratuitous, stupid or other "obviously" objectionable questions. Instead, I am myself; conversational, relevant, probing, intelligent, informative, empathetic, educational and theme-oriented in all my inquiries.
I use the answers as an opportunity to explore the juror's innermost self, to create an empathetic bond, to inform and educate on the themes of my case, to root out subtle bias, and to gain each juror's trust and confidence. With surgical precision, I skillfully expose the enemies of justice and use my peremptories boldly and without second thoughts. I resume my seat in triumph; confident that justice will be done by my new-found friends.
But alas, as I begin again the real process, in a real courtroom, with a real judge and jury, the dream more closely resembles a nightmare. This tie when the jurors file in, they return my welcoming smile with stone-faced glares. Several offer subtle waves or discreet winks in my opponent's direction. The rest frown openly at my client, confident payment will soon come due for whatever transgressions have brought him to justice.
As prospective jurors are called to the box, I suddenly realize I have misplaced my carefully prepared "juror profile", setting off a frantic search through the Juror Information Forms. In panic, I notice my notes on several of the forms, in direct violation of the dire warning "ATTORNEYS-DO NOT WRITE ON THESE FORMS!!". My mind goes gropes for a believable alibi, missing several juror numbers as they take their seats.
The judge begins with "general questions" and the courtroom becomes a kind of TV auction: "Number 36 gets one, number 28 gets one, number 94, number…. It madly rushes on, numbers zipping by too fast to register. With the last general question, I breathe a sigh of relief--then panic anew at the sight of my notes; a collage of meaningless drivel surrounded by dozens of mysterious numbers. Oh well, may be I can sort it out as we go along.
Completing her questioning, my opponent exchanges one last conspiratorial smile with her comrades in the box and resumes her seat. With hopeful smile, I rise to the challenge, determines to win over this hostile mob.
"Good morning ladies and gentlemen, my name is Steve Hayne and I…"
"Sustained. Ask a question."
"Er…, Mr. Johnson, I wonder how you feel about being called upon to sit in judgment of my client?" (I ask open-endedly).
"Not much", he answers with a frown.
"Well, I wonder if you'd share with us your reaction to receiving your jury summons?"
"Well, I understand how this seems sort of an invasion of privacy to have to have to answer these questions and all, but I wonder if you have had any experiences which came to mind when the judge explained what type of case this is?"
Undaunted, I slog on, hopefully that the smiling juror in seat number five sympathizes with those unjustly accused.
"Good morning Ms. Baker. By the way, do you prefer Ms., Mrs. or Miss?"
"Well then Ms. Baker, I believe you indicated to the judge earlier that you have been the victim of a crime?"
"Oh, of course. I guess I must have gotten you mixed up with another juror, ha ha. Well then, have you sat as a juror before?"
"Yes, as I explained to the prosecutor a few minutes ago."
"Oh, yes. Well, could you tell us something about your experience, I mean has there been anything about this process that you, er, that you've found particularly interesting or surprising, or have found surprising or interesting, er, your experience I mean. As a juror that is. Heh, Heh. Know what I mean? (I resist mopping my brow)
As the judge fidgets impatiently, I glance at the clock, hopeful or an approach recess. Alas, I am left to continue pulling teeth, extracting one-word answers from each juror in turn. In frustration, I finally attempt to fill the vacuum by lecturing the jurors, drawing a chorus of objections from Court Counsel. In the end, I get a few half-hearted assurances to be "fair" and earmark the worst for a quick, peremptory return to the jury pool.
With great satisfaction, I use the power of the peremptory to yank the trap door on those most like my mother-in-law or high school shop teacher--only to have them replaced by my opponents by my opponent's college roommate or current fiancé. With a wink and a promise to put aside their grossly obvious biases against my client and be "fair", the judge denies my challenges for cause.
So, until recently, if you gad given m e a choice between selecting a jury and having a root canal, I'd have asked for some time to think about it. Then I realized something was wrong here. Why did I hate so much? I concluded that I was my own worst enemy. I decided to quit trying so hard; to take pressure off.
Once I finally gave myself permission to hate it, and to screw it up, and to stop worrying about the judge and the prosecutor --well, I started hating it a lot less. And I also gave myself permission to be hones with the jurors and --lo and behold--started actually learning something about them in return!
The problem is -jurors lie. They quickly learn the "right" answers (those one-word responses which avoid further interrogation). In fact, I think we're motivated by the same emotion-fear. As a result, their answers are about as reliable as a Jimmy Swaggert promise to answer off prostitutes. That's why, in the final analysis, the best advice I ever heard about choosing a jury came from legendary criminal lawyer, Tony Savage. He simply. He said simply:
When the questioning is finishes, sit back, look them all over and decide which ones you'd like to go have a beer with. Those are the folk you want.
Tony was right. His advice was to take a moment after questioning is completed, and let your intuition operate. Usually, that intuition will be a lot more reliable than any intellectual analysis of the juror's answers, especially if you're trying the case without the assistance of co-counsel or jury expert.
Intuition, of course, can't (and needn't) be taught. We all have it in abundance. It's called having "gut feelings" or "hunches". Ready access to intuition, however, is too often blocked by anxiety, self-consciousness and the overwhelming effect of the whole process-feelings all of us have during voir dire. After all, how can you turn-in to your gut feelings if you're more worried about throwing up?
My goal then, is to teach you not only how to conduct voir dire, but more importantly, how to feel more comfortable with the process In the jury box, every day the American way of life is given its rebirth. American juries are the custodians and guarantors of the democratic ideal.
- Justice Bernard Botein (1946)
II. STARTING OFF ON THE RIGHT FOOT
One reason Gerry Spence is so astoundingly successful with juries is his ability to gain their trust. Few of use are blessed with his talent, but we can learn from his example. You have doubtless heard the advice to "be yourself" in front of a jury. The reason is simple: the jury won't listen to or care about you if hey sense you're being phony. They must develop trust in you. And the only path to trust is through sincerity and honesty.
No one is more "himself" than Gerry Spence. He is willing and able to reveal his real feelings about himself and his case to the jury; his apprehension and fear, his faith in the jury system, his sincere belief in the jurors as able and fair judges of his client's fate. They trust him, in part, because he trusts them.
"Being yourself" simply means talking about your case from your heart instead your head. It means forgetting you're a lawyer for a little while and talking to the jurors like an ordinary person, about ordinary, common feelings: The tragedy of drunk drivers killing innocent people- and the tragedy of innocent person being branded a criminal. The frustration of a criminal justice system which seems more concerned with the rights of defendants than victims and the horror of a system which presumes the accused guilty, such as the kangaroo courts in China and Iraq. The natural desire to get the bad guys (defendants) and reward the good guys (cops)-and the danger of hasty conclusions based more on bias and emotion than evidence.
In order to gain the jury's trust, you must be honest with them. Don't stand there with a phony smile and pretend you're having a goodtime - if you're afraid no one charged with drunk driving can get a fair trial -tell them. Then, ask how they fee about that. And then, how they should feel about that when looking at your client as a person instead of a nameless "defendant".
If you don't think they can really judge your client's reaction to the cop without getting into his shoes that night, tell them so. Ask if they're willing to be your client for a little while as he explains what happened that night and what the experience felt like. If you feel a huge sense of responsibility, tell them. And ask if they're willing to share it - so that justice can be done.
Of course you're feeling apprehensive and maybe a little overwhelmed and clumsy. That's perfectly normal. Accept those feelings and learn to use them to connect with the jury and to connect them with your client. While many of us older warhorses moan over the new "struck" method of jury selection, it actually offers an even greater opportunity for the defense lawyer to make that connection with the jury.
Regardless of the method, instead of asking a series of "wouldn't you agree" and "do you understand" questions calling for yes or no answers, ask questions that come from the heart and call on the jurors to look at and discuss their feelings. Leave the tired old yes and no question to the prosecutor, just as Gerry Spence did in that recent trial in Idaho. May be you can drive the prosecution screaming from the courtroom, too!
I consider trial by jury as the only anchor every yet imagined by man, by which a government can be held to the principals of its constitution. -Thomas Jefferson (1788)
III. THE JURY SELECTION PROCESS
Let's start with the basics. Before beginning jury selection, you must find out the judge's personal practice, either in pretrial conference or by asking other lawyers. Judge's biases and practices vary tremendously and you can't assume anything.
Depending on the method used, the judge usually begins voir dire by swearing in the panel and asking general questions of the jurors as a whole. If the judge always asks the same questions, ask for a copy from the clerk beforehand. It is always helpful to use your own written juror "questionnaire", but if denied by the judge, prepare your own list of general questions for the panes as a whole. 1
Once the general questioning of the panel has been completed, questioning of individual jurors begins. Such individual questioning must be allowed for the intelligent exercise of peremptory challenges. 2
Under the traditional method of voir dire, the prosecutor begins by questioning Juror No. 1 of the six jurors chosen by the clerk. The defense attorney follows the prosecutor in questioning Juror No.1. The prosecutor then questions Juror No. 2, etc., until six have been examined by both sides. The prosecutor then exercises her first peremptory challenge and a new juror is called and questioned, first by the prosecutor, the and then by the defense. Following examination of the new juror, the defense exercises it's first peremptory, the second new juror is called to the box, examined by both sides, and the process continues until all peremptories have been exercised or both sides accept the panel.
Under the "new" struck method, the whole jury panel is questioned at once. Each side is allowed the same amount of time, which is usually divided into two parts. The Peremptory challenges are made at the end of questioning and the jury is then empaneled. Since the juror not in the box are numbered sequentially, both lawyers know exactly who will be replacing a bumped juror.
Under the old system especially, it is recommended that a review of the out-of-the-box juror questionnaires be made before exercise of the last defense peremptory. Otherwise, you may end up with a much worse juror than the one just excused. Since you know who the next juror will be in the struck system, exercising your last peremptory is less of a crap-shoot.
If a juror exhibits either actual or implied bias,4 you may challenge the juror for a cause. A "challenge for cause" is an attempt to have a juror removed without having to waste a peremptory. To do so the court must find the juror unqualified as a matter of law, due to obvious or apparent bias. 5 A prospective juror's acquaintance with a party is not, by itself, grounds for a challenge for cause.6
As the great bulwark of liberty, trial by jury is the best safeguard of a free Constitution. This mainspring in the machinery of remedial justice brings the law home to every man's door.
-Sir Francis Palgrave (1832)
IV. ESTABLISH A "THEME"
Any voir dire "checklist" of questions is inadequate without a clear understanding of the case and the reasons for asking the questions in the first place. Prior to trial, "theme" of the defense must be determined. In order to establish a "theme", you first have to decide (1) where's the reason for doubt? And (2) what are you going to do with the breath test? A "theme" is nothing more than a sentence or two description of why you're trying the case, i.e., "the evidence simply doesn't add up", or "my client was suffering from the blow to his head from the police baton" or "his girlfriend was actually driving", etc.
For example, you have a .15 case with three witnesses swearing on a stack of bibles the defendant only had three beers all night. The breath test can't be accurate because he couldn't have gotten anywhere near a .05 on those three measly beers.
Therefore, you decide to let the evidence speak for itself and to treat the .15 for what it is; just a number! Now, you don't have to worry about science or the State's "expert" or any of that chemistry stuff because your challenge to the breath test is indirect. The evidence just doesn't add up.
But what type of jurors do you want? Jurors who can identify with your client, who are "feeling" people who will really hold the State to its burden, despite their natural disaster for the drunk drivers.
The purpose of asking all these questions is to get at jurors' gut feelings about drunk driving cases in general and how they view their role in a criminal case in particular, i.e., this case. Be flexible and use the jurors' answers as openings to discuss the presumption of innocence, burden of proof, the facts underlying the defense theme, biases, etc. The goal of voir dire is to establish their trust with you, to get the jurors to see your client as a real person, rather than a "defendant", and to let your instincts decided which of these folks you'd like to take out for a beer.
Arrive at the courtroom before the prosecutor and stake out your preferred place at counsel table. Seat your client right next to the jury or at least where they can see him clearly. This begins the process of making a "defendant" into a person. 7
Review the Jurors' Handbook or any other materials or videos jurors are shown at the beginning of their term. Remember, the legal system is a mystery to most jurors and it is sometimes helpful (and less "objectionable") to use the descriptions and definitions contained in the handbook to explain the system in terms with which they are familiar. It is more difficult for a judge to sustain an objection for "arguing the law" when the question is couched in terms of the information in the juror handbook.
Because of the heavy intellectual load of jury selection. I find it helpful to use a "juror questionnaire" 8 (see example at the end of these materials) to simplify keeping track of answers to general questions, especially with the "struck" method. If the judge won't allow you to use the questionnaire (even though it saves time), use the general questions from instead (also at end of materials). Be ready for voir dire before the clerk starts calling jurors into the box. Set your table; have your list of general questions, jurors questionnaires, jury selection form, juror profile, notepad, etc; laid out and ready.
Listen carefully during the prosecutor's questioning and note any openings or "red flags". Begin your conversation with the jurors by telling them a little about yourself and your feelings about the case.
For example, just before I begin questioning, I do sort of a "gut check" to see how I'm feeling so far. Did one or more jurors tell the prosecutor something that concerns me? If so, I might begin:
Good morning ladies and gentlemen, my name is______ and it is my honor and privilege to represent Bob brown in this case. Bob is charged with what is commonly called "drunk driving". Most people have strong feelings about favor of drunk driving. But we did not convene this tribunal to consider the awful problem of drunk driving. Instead, we are here to consider this case and this case alone.
Now, you may have noticed me squirming when Mr. Jones described his personal tragedy involving a drunk driver. It made me feel awful for him and frankly, scared the hell out of me. It made me think ‘Oh no, how can Bob get a fair trial in this case with Mr. Jones' awful experience'. Can anyone understand how I felt? Can you imagine how Bob felt? Ms. Smith, how about that? Can you understand why we might be concerned about that? Should we be? Why not? Do you feel angry at the person who killed Mr. Jone's wife? Should we hold Bob Brown responsible for that in any way? Why not?
By revealing your own feelings honestly, you show the jurors that it is okay to be honest in a courtroom. Doesn't beat the heck out of the usual "despite-the-fact-your-wife-was-killed-by-a-drunk-driver-will-you -promise-to-give-my-client-a-fair-trial" routine? Won't it tell you a whole lot more about the jurors' real feelings? Doesn't it also show them your sincere concern for your client?
Address each juror by name, easing into the process as comfortably as possible. making it clear that his honesty is appreciated, no matter what his feelings are. Remember, you're just trying to get to know him better, as you would when meeting anyone for the firs time.
Always refer to your client by name, occasionally walk over and stand behind him, put your hand on his shoulder, look at him periodically during questioning. Ask questions that require the juror to look at your client when answering. All these gestures communicate your concern over your client's fate and give him and identity, helping to make hi, into a real person into the eyes of the jurors. Show a genuine interest in the juror's answers, listen carefully, and look them in the eye. You may laugh with the juror, but never t him. It always helps to be willing to laugh at yourself, as well.
The wisdom of our sages and blood of our heroes has
been devoted to the attainment of trial by jury. It should be
creed of our political faith
- Thomas Jefferson, First Inaugural Address (1801)
V. SUBJECTS TO COVER IN A DWI CASE
Remember, your questions should be designed to encourage a conversation about the juror's feeling-ask a few yes or no questions as possible. Use the juror questionnaire or general questions for the yes or no answers, before you begin individual questioning. All of the following questions will elicit information which will raise more questions. The goal is to keep going until you've educated the jury on the "rules" of criminal cases, the issues in your case and have discussed their real feelings about the hot-button issues related to driving and driving and driving.
A. Breaking the Ice (the "Warm-Up")
Most lawyers complain that one of the hardest tasks in jury selection is getting the jurors to talk. How can you break the ice? One way is with provocative questions, even if they don't directly bear on your case. They're especially useful getting a discussion going during the "struck" method. For instance:
A while ago there was an article in the paper about a waitress at a local restaurant who criticized a pregnant customer for ordering a margarita with her meal. Does anyone recall that? What did you think about that? If you were a customer, what would you have done? Why?
If you were the restaurant manager, what would you have done about it? Why?
You know folks, as I talked about this case with friends and neighbors over the last few weeks, it made me worry. Almost to a one, when I mentioned the charge, they concluded Bob Brown must be guilty, without hearing any of the evidence. And even other attorneys told me "no one can get a fair trial in drunk driving case nowadays". How do you feel about that? Does anyone here agree with that attitude? Does anyone disagree with it? Why?
Did everyone here follow the news stories about the Rodney King Case? What was your reaction when the police officers were acquitted in the first trial? Were you in favor of trying them a second time on civil rights charges? Why?
Do you think the case might affect the way a jury might view a police office charged with using excessive force in the future? Should it?
Did everyone follow news reports about the Reginald Denny trial?
How many people here felt the verdicts were going wrong in that case? Why?
Do you think they should have a second trial for violation of Mr. Denny's civil rights?
In the last election there was an initiative called "three strikes and you're out" bill.
Does everyone remember it?
Did anyone here have strong feelings about that initiative?
Does anyone here favor a "two" strikes and you're out" law?
What sort of image comes to mind when I use the term "drunk driver"?
Do you think one of these "Joe Six-pack" guys in the news who get drunk and run over innocent people? Does it make you a little mad and frustrated?
I don't blame you. And I can't ask you not to have those feelings. All I can ask is that you promise to reach down inside and find the best part of yourself, to be good and decent enough to put those feelings aside and try Bob Brown's case alone and not blame him for the terrible things other people have done. Will you find that hard to do?
The point of these questions is to start a discussion about our normal, every day feelings about these provocative subjects. They will offer openings for talking about reasonable doubt, burden of proof and the critical need to try your client's case on its facts without the influence of what others may have done.
The jury has borne the test of a longer existence better
than any other legal institution that ever existed among men.
We owe more of out freedom and prosperity to it that all other
causes put together.
- Chief Justice Jerimiah S. Black (1866)
B. Discussing the Order of the Trial
For new jurors, it is helpful to explain the order of the trial and each person's role in it. Discuss your duty to be a strong advocate of your client. The questions should reflect your style or nature of the defense. For instance, if planning an aggressive attack on the police office, the approach might be:
Mr. Smith, I expect a police office will testify and have a lot of bad things to say about Bob Brown, some which we hotly dispute. That being the case, you wouldn't think much of me as his lawyer if I just sat there and didn't challenge the officer, would you? Do you feel an attorney should aggressively defend his client? Why is that important?
Now, Mr. Brown can't ask the officer any questions, he has to depend entirely on me. I had like you to put yourself in his shoes for a minute. If you were sitting here wrongfully accused, you'd want me to challenge the cop, wouldn't you? Do you think you might get irritated with me if I do my job, if I stand up and challenge the cop's conclusions or memory?
If the prosecutor tries to do something outside the rules and I object, do you think you'd resent the interruptions? I wouldn't be doing my job if I let that pass, would I?
Trial by jury is the most valuable privilege of an
American citizen. It stands as a bulwark of protection
for even the lowliest individual against the power of
the State. As long as we have trial by jury, our sacred
freedoms shall remain safe and secure.
- Justice Alphonse Beeton (1838)
C. Presumption of Innocence, Burden of Proof, Reasonable Doubt.
Despite adamant claims otherwise, few jurors really understand (or adopt) the presumption of innocence, burden of proof, or requirement of poorly beyond a reasonable doubt without thoroughly discussing it during voir dire. It doesn't take jurors long to learn to deny any confusion over such concepts or risk an uncomfortable cross examination by the defense attorney. The subject must be approached with diplomacy and from the juror's point of view.
Read the Juror's Handbook and gave it with you during voir dire. Show it to the jury and ask if they have read it. Refer to the explanation in the handbook, elaborating with diagrams of the scales of justice and any other demonstrative means you can use that will assist the jury in understanding the concepts.
Use questions that invite discussions:
Ms. Smith, it says in the Jurors' Handbook at page 5 "the defendant has pleaded not guilty and you must presume the defendant's innocence though the entire trial unless the plaintiff proves the defendant guilty." Why do you think we have that sacred rule? In this day and age, is it still a good rule? Why?
Also at page 5 it says, "The plaintiff's burden of proof is greater in criminal case than in a civil case. In each criminal case you hear the judge will tell you all the elements of the crime that the plaintiff must prove; the plaintiff must prove each of these elements BEYOND A REASONABLE DOUBT…" It says that in big bold letter - BEYOND A REASONABLE DOUBT. Why do you suppose they put that and the PRESUMPTION OF INNOCENCE in big bold letters like that?
Now, Ms. Smith, we talked earlier with several jurors about there being two sides to every story. If we used our example of two kids with different versions of the fight how would you apply the presumption of innocence and proof beyond a reasonable doubt to that situation?
Let's say we're now at the end of the State's case and I decide not to have Bob testify. I decide to rest my case at that point. Let also assume the State has put on a pretty case which proves Bob was probably guilty. But there are some nagging doubts. Are you going to require me to disprove the State's case? Are you going to make me prove Bob's innocence?
Use the "scales of justice" diagram to explain the difference between criminal and civil cases, trying to get the juror to discuss these rules as you go along. This approach requires some finesse and friendly assistance (as well as judicial cooperation) to assure some other approaches:
Ms. Smith, does the fact that Mr. Brown is charged with a crime cause you to feel any differently about him than you do about the juror sitting next to you?
Suppose you were sitting where Bob Brown is sitting, charged with a crime. Would you want someone who feels and thinks just like you feel and think right now on your jury?9
Do you sometimes feel that our criminal justice system is too lenient with criminals?
What would you change about it?
Do you feel that enough concern is paid to victims of crimes?
Do you think "criminals" have too many rights? In what way? What if I asked the same question about "accused person"?
What do you think when you read in the paper or see TV that someone was arrested for a crime? Do you think "wait just a minute, he' presumed innocent?" Why not?
Did you read your Jurors' Handbook? Do you remember reading about the differences between civil and criminal cases? Was it complicated? Do you think you understand it well enough to explain the differences to me?
Why do you think we require the State alone to prove its case? Why shouldn't a defendant have to prove himself innocent?
Ms. Smith, these are difficult concepts we're talking about here. Do you feel you can explain the difference between what "proof beyond a reasonable doubt" and "proof by preponderance of the evidence" mans to you? Would it help if we explained it to you a little more? [explain it].
Do you think you understand the difference between finding someone "innocent" and finding someone "not guilty"? Is justice done when a person is found not guilty because the charge wasn't proven beyond a reasonable doubt? Why?
Why do you believe it's a good rule that Mr. Brown has no obligations whatsoever to prove himself innocent and the burden of proof is entirely upon the state?
If you have a doubt and a reason for it at the end of this case, do you believe justice will be done if you vote "not guilty"? Why?
Are you the sort of person who would you stick to your guns even if other jurors disagree with you?
Are you the sort of person who would fight a traffic ticket all the way through court if you though you were right?
It is not difficult to understand why the founding
fathers entrenched the right of trial by jury in the
supreme law of the land. They regarded the exercise
of that right as vital to the protection of liberty against
Justice John Marshall Harlan (1900)
D. The Rest of the Story
Obviously, you need to keep the jurors' minds open through all the bad evidence presented during the prosecution's case-in-chief. In discussing your side of the case, don't forget the burden is on the prosecution! Following are two examples of ways to deal with the problem [the approach will obviously depend on whether you intern to put on any evidence]:
(For the Juror Who is a parent)
Mrs. Smith, you described how your children sometimes argue and that you always wait until you have heard both sides of the story before making up your mind. Why do you do that? Of course, you don't have to be convinced beyond a reasonable doubt to make up your mind in that situation, do you?
Of course in a trial, because the State has the burden of proof, the prosecutor has the advantage of putting on its version of what happened first and a lot of bad things will be said about Mr. Brown before we get a chance to respond. Will you make a special effort to remind yourself to wait during the prosecution's case until all the evidence is in?
If you find yourself even learning toward the prosecution during its case, will you make a special effort to remind yourself that Mr. Brown is presumed innocent? Why is that important to you?
Certainly, you'll be discussing the prosecutor's side in the jury room, since the State has the sole burden of proof. But in fairness to Mr. Brown, will you make an effort to discuss his side too, to be his advocate in the jury room?
And will you remind the other jurors of the presumption of innocence and hold prosecution to its burden?
Another possible approach:
(For the Juror with Training in Psychology)
Ms. Jones, during the time you were taking that course in psychology, do you recall studying something called "primacy and recency"? Well, if I may paraphrase it, a group pf psychologists studied jurors/ memories and found they had a strong tendency to remember only the first and last things they heard. Do you recall that phenomenon?
Well, if true, Bob Brown and I have a big problem. Since the State has the Whole burden of proof, the prosecutor gets to go first and last and we're stuck in the middle. Do you think you cam keep that quirk of human memory in mind during the trial? Would you promise the judge to follow her instructions, to continue presuming Bob innocent and to keep an open mind during the prosecutor's case?
Out of fairness, will you make a special effort to remember and discuss our side of the case when you get into the jury room?
Some other questions concerning the problem:
Now under the rules in this courtroom, Bob and I are not required to prove anything. We don't have to convince you of his innocence - the State has the entire burden. If I decide not to have Bob Testify - to challenge the State's evidence - will you hold that against him in any way?
Would you ever make up your mind about any controversy after hearing only one side of the argument? Why not?
Is it possible to ever judge's instructions not to make up your mind about this case before hearing both sides is a good rule? Why?
Do you think the judge's instructions not to make up your mind about this case before hearing both sides is a good rule? Why?
Who handles the discipline of the children in your family?
Which do you consider the more important quality in parenting: the ability to discipline or nurture a child?
Trial by jury is the citizen's birthright, his fence
and protection against all frauds and against
all storms of power.
-Sir John Maynard (1689)
E. Dealing with the Breath Test.
There are two school of though on dealing with the breath test during voir dire; (1) ignore it, or dance around it, since you may be able to keep it out during the trial, and
(2) confront it head-on, since it will hit like a bombshell when it's admitted in the middle of trial.
I subscribe 100% to the later. I would much rather deal with it at the start; to claim it, brag about it, and generally show my contempt for it, right off the bar. After all, how can the jury trust if you try to hide it and then it sneaks in anyway?
Don't act like you are afraid of it, after all, it doesn't mean anything without consistent, compelling support from the real evidence in the rest of the case. Start by telling the jury the truth:
Ladies and gentlemen, Trooper Pitbull will tell you my client blew .16 on the breath test. Now we expect the evidence will show that the test result can't be accurate, period. The question I have for you is this: How many people here think Mr. Brown is probably guilty based on that number?
What does that number do your feelings about the presumption of innocence?
Can you follow the judge's instructions to presume the breath test is wrong?
What id the real evidence in the case - the reset of the case - doesn't support it? Will you follow the judge's instructions to reject it?
What if the rest of the evidence is simply raises a doubt about the test, will you follow the judge's instructions to reject it?
That number, of course, is presumed inaccurate. But it's obviously hard to ignore. The questions is this: can you look to the real evidence in the case - the rest of the case, in deciding whether it's accurate and reliable beyond a reasonable doubt?
In addition, you need to get at the jurors real feelings about computers. Do they trust them, or do they have a healthy suspicion of them? How do they feel about the computerization of our society? Are they ready for "guilt by machine"? Why not? One way to probe their feelings toward computers is as follows:
I'd like you all to imagine you're on an airplane on a dark and stormy night. Thunder and lightening are everywhere, and the plane is bouncing around in terrible turbulence. You're starting an instrument approach to landing. All you can see through the rain-streaked windows is the coal-black night. Are you scared?
Now you have a choice to be one of the two planes. One is being flown by a computer. The other has a real live pilot. On which plane would you be most comfortable? Why?
Now, I'd like you to imagine you're standing next to a cop who's holding a radar gun. A car is coming toward you at what appears to be about 20mph. You look at the radar gun and it shows 50 mph. Which would be more likely to believe, your senses or the radar? Why?
Would you be convinced the radar was accurate beyond a reasonable doubt?
What if the driver's passengers swore he was only going 20?
What if the judge told you must presume the radar is inaccurate?
There are two school of though on jurors with a technical background: (1) They will be critical of the testing procedures and aware of problems with computers and measuring devices in general; (2) they will accept the rest results because they have faith in the high degree of profitability of accuracy. I subscribe 100% to the latter and recommend that such jurors be kept off the jury, unless they are solid gold in all other respects. They will dominate the jury deliberations with their expertise on the question of the breath test, almost always to the benefit of the prosecution.
Has anyone had any engineering or technical training?
What experience have you had with technical equipment or measuring devices of any kind?
What problems have you experienced with computers/ measuring devices?
Have you eve experienced "transient error"? A malfunction which is unexplained and can't be duplicated) with computers/ measuring de
Some other questions:
What have you read or heard about he controversy over the State's breath test machine's accuracy?
Do you have an opinion as to the reliability of breath test machines in general?
How do you feel about polygraph machines? Do you trust them? Why. Why not?
How do you feel about radar? Do you trust it? Why, why not?
Trial by jury is a privilege of the highest nature and our most important guardian of liberty. Our liberties will subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, but also from all secret machinations which may sap and undermine it.
- Justice William Blackstone (1768)
F. Exposing and Dealing with Bias.
Almost all jurors have strong negative feelings about drunk driving, but will deny bias against the defendant. If you asked a white juror, " Are you prejudiced against black people?", he would almost certainly deny it. The same is true if you pose the question to a member of MADD: "Don't you think your feelings would make it very difficult for you to give a person accused of drunk of drunk driving a fair trial?".
However, just because a person may have feelings about drinking and/or drinking and driving, it doesn't necessarily mean he or she is a "bad" juror. The person who is willing to be honest with you may very well be your client's best friend during deliberations. The real question you're trying to answer is: Will this person hold the presumption of innocence and make the prosecutor prove the case beyond a reasonable doubt? Remember, your intuition is usually more reliable than stereotyping.
To get at a juror's real feelings, the approach must be oblique, by asking a series of questions. In a case involving race, for instance:
Mr. Jones, how long have you lived in the suburbs? From where in the city did you move? Did school busing influence your decision to mover?
What other reasons did you have?
What were some of the things you prefer about your present neighborhood?
Was security for your family a consideration?
DO you enjoy going for walks or jogging around your new neighborhood? Do you think you'd feel a little safer going for a walk or jog in your neighborhood versus downtown Seattle? How about the Central Area? Why would you feel less safe walking in the Central Area?
Do you share the tendency of a lot of us to identify a lot of crime with an area where mostly people live?
Do you have a burglar alarm system in your home or car?
Do you own firearms? Why? Was personal protection a part of your reason for purchasing a firearm?
Does your place of employment have an affirmative action program? DO you generally believe affirmative action programs should be increased or decreased?
The above approach helps illustrate the point that uncovering bias is a process. The idea is to allow the juror to reveal his real attitudes by answering fairly innocuous, indirect questions which don't directly challenge his "fairness". In doing so, you get an idea of how trustworthy the juror really is.
One of the best techniques I've seen for handling the subject of bias was used by Seattle attorney Jeff Jones in a case involving a direct conflict between his client/ defendant's version of the incident and that of the arresting officer. Using a sequence of questions, Jeff crept up on the issue rather than confronting it directly:
Ladies and gentlemen, how many people here think that police officers always tell the truth? [only a couple hands were raised].
How many here think police officers usually tell the truth? [most hands raised]
Alright, how many here think that a defendant in criminal case usually lies? [numerous hands]
Ladies and gentlemen, I thin we've just demonstrated a bias. Now the question is what can we do about it?
In a DWI case, you're looking for jurors' real feeling about alcohol and drinking and driving:
Have you been following the news stories and publicity about toughening up drunk driving laws over the past few years? What do you thing about that?
Is it your impression that the laws are too tough or ought to be tougher? Why do you feel they should be [tougher/less tough]?
What sort of image appears in your mind when you think of the term "drunk driver"?
How do feel about that image? Anger? Frustration?
Is it dangerous for jurors to feel that way during Bob Brown's trial? Why?
Do you think it's possible to completely ignore those feelings when sitting in judgment of Bob Brown, sitting here charged with drunk driving?
Would you be in favor of a law making it illegal to drink and drive, no matter how much a person's had to drink?
Do you ever drive after drinking? Do you feel it's possible to drive safely after drinking? Does it tend to make you even more cautious?
Have you ever considered joining MADD or similar organization? Why?
How do you feel about MADD?
Has alcohol ever caused problems in your own or a close friend's family? What was your experience like? How does it make you feel about people who drink?
Do you feel alcohol should be banned or restricted at sporting events?
Do you ever meet friends for a drink after work? How often?
What is the beverage of your choice at social events?
Do you think a person who drinks any amount of alcohol and then drives is doing something wrong, even if it's not against the law?
Will the fact that Bob Brown had something to drink and then drove be enough to convince you he is guilty of drunk driving beyond a reasonable doubt? Why not?
The institution of the trial by jury has been sanctified
by the experience of the ages. It has been recognized
by the Constitution of every state in the Union. It is
deemed the birthright of Americans and it deemed,
that liberty cannot subsist without it.
-Judge Alexander Hanson (1788)
G. Educating the Jury
It is perfectly appropriate to "educate" the jury on both the law and the facts of your case where it might have an impact on the juror's fairness. Questions involving auto accident experience, familiarity with machines, field sobriety tests, experience with alcohol and police, etc., are all appropriate topics for inquiry involving the specific facts of your case.
For example, if your client was asked to perform the field sobriety tests following a case accident, it is vital that you discuss the juror's personal experience in the aftermath of a car accident and his state of mind, vis-à-vis performing feats of balance or answering difficult questions. If your client had a personality conflict with the cop, the jurors' experience with less-than-congenial cops needs to be discussed. If the driving occurred in a dark and windy stretch of road, it's appropriate for questions about the jurors familiarity with the location.
Remember, perhaps the most important "education" of the jury concerns the critical importance of adhering to the "rules" of presuming your client innocent, and holding the prosecution to its burden of proof. The following types of questions "clue" the jury on the nature of the issues they're going to gave to consider.
Do your understand that it is not against the law merely to drink and then drive, but only if your ability to drives significantly lessened? Do you agree that should be the law? Why?
In your experience, does alcohol affect all people in the same way? How does it differ from person to person? Does the effect depend on a lot different variables?
Do you feel it is critical to doing justice that we consider the facts of this case alone in deciding whether Bob Brown was driving while drunk? Why?
Do you think police officers can ever be mistaken, even when they believe they're right? Would a police officer's opinion that Bob Brown was under the influence be enough, would you look at the evidence?
Have you ever noticed a police car following you? Did you feel nervous? Why?
Have you ever stopped by a police? How would you think it would make you feel?
Would you know what to do or say under the circumstances?
Do you realize that a drunk driving charge is different than other criminal cases; that involves a condition rather than an event? In other words, you are not being asked to decide any easy yes or no question: Did Bob Brown rob a bank? Its much more complicated than that. You're being asked to decide if Bob Brown was in a particular condition at a particular time, subject to all sorts of variables, beyond a reasonable doubt! Will you take all those variables into account in judging Bob Brown's case?
Have you ever violated a traffic law when you thought no one was around, such as making a "California stop" or going a little over the speed limit? Were you drunk at the time? Had you ever been drinking at the time? Would you agree that such violations occur all the time by people who are not drunk?
Do you feel you would be nervous if called upon to testify in a trial even if you were telling the absolute truth? Why?
Trial by jury is the foundation of our free Constitution: take that away and the whole Fabric will soon molder into dust.
-Charles Pratt, Lord Camden (1792)
H. Connection to/Experience wit Law Enforcement
Generally, jurors with close connections to law enforcement should be avoided. Ask if the juror ever discusses the officer's work with him, or if he socializes with others in law enforcement. Suggest that it would be quite natural for the juror to give a bit more credit to the police officer's testimony than to that of a civilian witness. Ask diplomatic but leading questions that suggests the existence of bias. The goal is to talk him into a challenger for cause. Failing that, use the juror's experience with cops to educate the jury on their general biases.
Would you agree that most police officers believe the person they've arrested is guilty?
Have you ever known any biased police officers? How were they biases?
In your experience, do police officers presume an accused person innocent? What sort of slang terms have you heard police officers use to describe people they've arrested?
From some officer's points of view, what we're doing in this courtroom is a waste of time, isn't it? Do you think it is? Why not?
If you were to vote "not guilty" at the conclusion of this case, would you consider it a criticism of the police office? Why not?
Do you think your police office [friend/relative] would agree?
Once again, the mere fact of the connection to law enforcement should not determine the juror's suitability in your case. It's his or her feelings toward the interests/ attitudes of cops versus a person's right to a fair trial which matters. One of my favorite jurors of all the time was the daughter of a state patrol sergeant. She knew what a biased, unreasonable, tyrant he could be!
Jurors who have personally been victimized or have relatives or close friends who were victims of crimes will usually have some feelings about the experience and the way it was handled by the police. Were they rescuers or insensitive clods? Is the juror subconsciously awaiting an opportunity to repay the police for saving her or her family from a frightening situation? Was the juror so disillusioned with the police response that she would be sympathetic to your argument that police are human and make mistakes too?
How did being a victim of a crime make you feel?
How was it handled by the police?
How do you feel about the police as a result?
When you pass a police officer on the street, - do you feel like waving or stopping and shaking his or her hand?
We are bound to the jury trial by all the holiest
traditions of our past history; we esteem it as
the very bulwark of liberties.
- John Norton Pomeroy (1863)
I. Prior Experience with Court
For those jurors who have testified in court, you should ask about the experience; was it nerve-wracking even though she was telling the truth? Can she understand how the defendant and his witnesses might be nervous even though telling the truth, compared to the smooth, experience, well-trained police officer's testimony? Suggest to the juror that it is only fair to take that into account in evaluating the testimony.
If a juror was once a party in a lawsuit, ask her to describe the case and her feelings as to how it was handled in court; was she suing a big corporation? Was she wrongly accused of something? Was she treated fairly, was "justice" done? If not, why not? Look for biases against authority figures and empathy for the underdog.
Those jurors who have challenged traffic tickets in court know that a police officer can make a mistake. Have the juror discuss why he decided to challenge the traffic ticket, what the outcome was, and whether he felt the police officers' version of the incident was 100% accurate.
When you were a witness in court, what was it like? How did it make you feel?
Were you nervous? Do you think it showed? Was it because you weren't telling the truth? Will you take that experience into account in comparing the officers' manner while testifying with Bob Brown's?
What was the lawsuit you were in all about? Did you feel justice was done?
How would you describe the experience of testifying in court to a friend?
How would you describe our court system to a friend? What's good or bad about it?
The jury is an indispensable part of the
machinery of justice. Liberty cannot exist
without trial by jury, and despotism cannot
long survive with it.
- Judge Henry Caldwell (1899
J. Prior Jury Experience
Use prior jury experience as an opening to discuss the difference between civil and criminal cases; the presumption of innocence, difference in burden of proof, etc.
You should also find out if the juror has sat on any of the opponent-prosecutor's cases during the same term.10 It is a good idea to call the clerk a day or two before your trial to find out who defended in cases tried just prior to yours. Then call those attorneys and find out everything you can about the pane, the prosecutor and the judge.
Mr. Jones, in that civil case you sat two years ago, you probably remember being instructed that the burden of proof was by a preponderance of the evidence. Do you think you understand how a criminal case differs? How?
In your prior jury experience, did you feel justice was done? Why / why not?
Based on that experience, what advice would you give me in defending Mr. Brown today?
How were the deliberations handled - did you thoroughly discuss the evidence?
How long did you deliberate? Why so short (long) a time?
Do you want to serve on this jury? Why?
If I were to seat you on this jury, how do you think your prior experience would affect your view of this case? If you were elected foreperson of the jury, would you be wiling to assume that responsibility? How would you conduct deliberations to insure Bob is presumed innocent and to require the State to meet it's burden?
K. Experience with Auto Accidents
This line of questions is important in all DWI cases, whether involving an accident or not. The juror with accident experience will almost surely have some strong feelings and memories about it, especially if alcohol was involved. Ask about the juror's state of mind immediately following the accident and whether, even if uninjured, she would consider that a goof time and place for performing feats of balance, and dealing with interrogation.
On the other hand, if the other driver had been drinking, such a juror may very well have a grudge against persons who drink and drive. Such jurors can make or kill a defense during deliberations and their experience and feelings must be discussed fully (but with sensitivity) during voir dire (you can bet the prosecutor will!).
How did you feel immediately after the accident, were you physically or mentally shaken?
Considering those feelings, how would you have reacted if someone asked you to do circus-act balance test?
Were there two different versions of who was at fault in the accident?
How was the investigation handles by the police?
Did drinking play a role in the accident?
How did it all finally get resolved?
I expect you still have some strong memories and feelings about that experience, don't you? Can you tell me about it?
I'd like you to put yourself in Bob Brown's place for a moment. Would you be entirely comfortable with a juror who has had that same experience sitting on your jury if you were accused of drunk driving?
No single institution that the wisdom of man
has ever devised is so well calculated to
preserve a people free, or make them so, as
trial by jury.
- J. Sydney Taylor (1838)
L. Personal Questions
Personal questions are those which don't appear to have any direct bearing on the case, but which can reveal a lot about the true character of a person. Many judges have a little patience with personal questions, usually because they don't understand their relevance (or at least don't believe the lawyer understands what the answers mean!) The questions are most useful with jurors on the fence - the ones you're not sure about. For instance if you feel pretty good about a juror, but still have mixed feelings, you might ask which deceased American he most admires. If he chooses J. Edgar Hoover over John Belushi, it might be easier to make up your mind.
Even though I like most of these questions, I must admit they're only useful time when I get obvious "red flag" answers to them. For I like most of these questions, I must admit they're only useful to me when I get obvious " red flag" answers to them. For instance, in a domestic violence assault case I once tried, a juror answered that her favorite spare time activity was volunteering at a battered woman's clinic and that the greatest living American was former N.O.W. President, Molly Yard. Up to that point, I had like her answers, even though my intuition was shouting "beware!".
What do you enjoy doing in your spare time?
Given a choice, what occupation would you choose to pursue other than your present one?
What's your favorite television program?
What's your favorite cop show?
What's your favorite movie?
What's book have you mostly recently read?
What magazine do you subscribe to or read regularly?
Who would you say is the greatest living American?
Which historical figure do you particularly admire?
Do you have a favorite tavern or cocktail lounge?
To which organizations have belonged in the past?
Do you ever visit sports bars?
Do you have any bumper stickers on your vehicles?
What activities are you involved in at school or church?
Who's your favorite radio talk show host?
Have you ever been called on to lead a group or supervise a project?
Does your job involve supervising other persons?
Have you ever been called on to mediate a dispute? How did you handle it?
Where do you usually socialize with people from work?
Do you ever stop off at a tavern or lounge to visit with friends or coworkers after work?
What is your beverage of choice?11
What kind of music do you enjoy?
[Trial by jury] is essentially a child of freedom.
Where the scepter of the tyrant rules, it has no home.
The system was inaugurated in the effort to thwart the
power of the despot. It is the greatest safeguard
of liberty, and the greatest prosecutor of its privileges.
Samuel M. Wolfe (1911)
VI. JUROR PROFILE
The specific facts of each case will determine the "juror profile", those very general desirable and undesirable qualities you are looking for in the case. However, great care must be exercised to avoid relying too much on this stereotyping. It can be helpful, however, in making choices on close calls. Typically, the qualities of sympathetic defense jurors in DWI cases are:
(1) Drinkers who admit to having more than two drinks at one sitting
(2) Middle to lower class
(3) Those who appear "underdressed" for a courtroom
(4) Blue collar workers
(5) Country music fans
(6) Rugby, softball, dart or pool team members (especially with tavern sponsors)
(8) Overweight persons who drink
(9) Social, easygoing, happy people
(11) Those who have contested traffic tickets
(12) Those who root for the underdog
(13) Retired non-commissioned military personnel
(14) Persons distrustful of government
(15) Beer and bourbon drinkers
(17) Anyone you instinctively like
Typical qualities of poor defense jurors in DWI cases are:
(1) Non- drinkers and recovering alcoholics
(2) MADD members and sympathizers 12
(3) Up-tight, judgmental, unhappy people
(4) Physical fitness buffs (non-team sports)
(5) Those with connections to police or prosecution
(6) Those with close friends or family members drinking problems
(7) Those with experience with accidents involving a drinking driver
(8) Computer lovers
(9) Engineers and technical types
(11) Persons in the medical professions
(12) Persons employed in the insurance industry
(13) Retired military officers
(15) White wine drinkers
(16) Those who never drive after drinking
(17) Anyone who you instinctively dislike
Remember, though, be cautions of relying too heavily on stereotypes!
Effectively jury selection requires solid preparation, good listening techniques, a conversational approach, flexibility, and perhaps above all, a willingness to accept yourself and listen to your intuition. No, it's not easy, and probably never will be. But if you can allow yourself to be human, and to discuss your real feelings with the jury, you might be able to capture a little bit of that Gerry Spence magic. Good luck.
1 See sample of both a juror "questionnaire" and general questions for the jury form at end of materials.
2. CrR 6.4(e), Peremptory Challenges; State v. Laureano, 101 Wn.2d 745, 758 (1984) (the extent of voir dire is within the discretion of the trial court; however, it should allow the parties sufficient information so they can effectively challenge for cause and intelligently use their peremptory challenges), State v. Frederiksen, 40 Wn. App. 749 (1985). See also, Cartmell v. State, 784 S.W.2d 138 (Tex. App. 1980), which ruled that a twenty minute limitation on voir dire was unreasonable. See also U.S. v. Keen, 508 F.2d 986 (C.A. Wash 1974) (Cert. Denied) and U.S. v. Jones, 722 F .2d 528 (9th Cir. 1983).
3. The clerk of the court may not excuse a prospective juror based on knowledge that the juror is likely to be excused for cause or by use of a peremptory challenge. State v.Tingdale, 117 Wn.2d 595 (1991).
4 Actual bias must be demonstrated proof, implied bias is conclusively presumed from the facts shown.
State v. Noltie, 116 Wn.2d 831 (1991)
5 State v. Latham, 100 Wn.2d 59 (1983); State v. Moody, 18 Wash. 165 (1897); Wash. Const. Art. 1, Sec. 22;
RCW 4.444.170, .180, .190. See also City of Cheney v. Grunewald, 55Wn. App. 807 (1989) (juror was member of MADD, had niece killed by drunk driver, and who "would not want six jurors with his frame of mind" on jury where he was defendant; court ruled that a failure to grant challenge for cause was reversible error).
6 State v. Tingdale, 117 Wn.2d 595 (1991)
7 Obviously, you will have thoroughly discusses appropriate dress and courtroom behavior with your client prior to trial.
8 Other experienced lawyers, however have expressed concern over use of a questionnaire in a DUI case for fear of too much reliance on the jurors' answer to the "red flag" questions. Again, it's most useful in reference to jurors "on the fence" and should not take the place of intuition.
9 Approved in State v. Bird, 31 Wn.2d 777 (1948)
.10 Unites States v. Jefferson, 569 .2d 260 (5 Cir 1978) held that jurors who have served in similar cases during the same term may be challenged for cause.
11 If I was I only allowed to ask one question in voir dire, this would be it.
12 City of Cheney v. Grunewald, 55 Wn. App. 807 (1989) held that membership in MADD should be considered in evaluation a challenge for cause.