I was first chair (lead counsel, as they say on tv) for a trial this week that lasted all of Monday and most of Tuesday. One of the fun things about jury trials is the process of actually picking the jury, also known as voir dire. It’s likely you’ve somehow been a part of this process before, but in case you haven’t, voir dire is essentially just a series of questions asked in an attempt to choose competent jurors that will, in theory at least, act fairly and impartially in deciding the case before them.
Juries are interesting. They’re unpredictable. In my limited experiences dealing with juries, they often come back with decisions that are contrary to the law – which can be a good thing or a bad thing, depending on whose side you’re on. They’re truly a study in group dynamics. Will one person adamantly impose his or her will on the rest of the group? Will the group break up into two opposing factions to debate the issues to exhaustion?
I’ve never been on one. I’ve only picked one (though I’ve second chaired a couple of others while the jury was picked). In a lot of cases, the second chair actually ends up having more to do with who ends up on the jury, even though the first chair makes all the final decisions. This is because while the first chair spends all his or her time asking questions, the second chair is taking notes on which jurors respond to which questions and how.
At the end of asking questions, you get an opportunity to briefly confer with your 2nd chair and then you go talk to the judge and the other attorney. At this point, you go through all the people you’re going to strike for cause. There’s no limit on how many people you can strike for cause. These will be people that gave answers that indicated a preconceived bias with regard to the facts or issues involved in the case. If you’re ever on a jury panel and don’t want to be, the fastest ticket off is to raise your hand in response to one of the questions. When you’re called upon, one of the follow up questions will always be something like, “do you think you can set aside that experience and be fair and impartial in the case before this court?” If you say “no,” then you’re almost certainly not going to be chosen for jury duty. Of course, I don’t think you should do that. You should be as honest as possible. Other people are giving their time to do their civic duty – you should, too. Besides, I think it would be interesting, depending on what type of case you get. Like I’ve said, I’ve never been on a jury.
In my case today, the jury was out for about 3 1/2 hours. While they’re deliberating they can send questions out to the judge. The attorneys then have an opportunity to argue what the answer should be to those questions. As I was pacing around the courtroom, I couldn’t help but be incredibly curious about the discussion going on in the deliberation room. I’m sure it wasn’t 12 Angry Men or anything, but I know, based on the questions they would send out, that there was some pretty heated discussion going on in that room.
Anyway, when you’re going through and picking a jury, you honestly don’t have much to go on. We struck as many people for cause as we thought were necessary. It ended up being about 6 people, and the other attorney cut 2 more. This brought our jury pool down from around 40 to about 32. We offered another strike for cause that wasn’t accepted. After you submit your strikes for cause, then you have another chance to confer and each party has 3 peremptory strikes (for a total of 6). These are strikes that can be used for any reason you like, except unconstitutional issues, like racial or gender discrimination. I was actually a part of a criminal case that racial discrimination was alleged in jury selection. It’s an almost automatic allegation if you have a defendant that’s a racial minority. It’s nothing personal, it’s just something that has to be mentioned on the record in order to preserve it as an issue on appeal.
The built-in peremptory strikes must be used, they aren’t optional. This makes the first 18 jurors on the list the pool of candidates, and the next 3 people on the list alternates. The plaintiff (me in my case) strikes 3 and 1 alternate (I made the mistake of only striking two – and the last person on the list ended up being automatically struck), then the defendant has the opportunity to strike his 3 and 1 alternate.
There’s actually no scientific method of picking jurors, though John Grisham would probably disagree. A jury consultant would probably disagree as well. What you can do, is used stereotypes based on the small amount of information you have. It’s not much, but you do have info about a juror’s occupation, age, and family. Of course, trying to draw useful information from stereotypes is a fool’s errand. For instance, we decided that a retired police officer who was also a mother of three was someone we wanted on our jury (I won’t disclose how I know – but we were right), we decided that an attorney that knew the opposing counsel was someone we didn’t (I’ll never know if we were right, since we used a strike on that guy). Almost all the decisions are made on perceptions and stereotypes, including inferences based on how the people look. It’s probably not right, but I’m not sure that there’s a better way to do it, and I’m fairly confident that this is what comes into play in every case that a jury is chosen. I’d love to hear from anyone whose been on a jury or picked a jury and has any insight into the process that they’d like to share. Thanks for reading.
PS – I won the case with 10 votes (I needed 9 to win), out of 9 jurors.
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