Wednesday, December 7, 2011

A Jury of Your Peers

Trial starts one week from today. It’s a white collar crime case. That means someone stole money from a company.

I know what you're thinking. Who schedules a trial the week before Christmas? We won't complain though. Not much anyway.

I’ve described the jury selection process before. Let’s discuss what prosecutors actually look for and how they pick a jury.

The preparation starts weeks before. We assess our case and discover our strengths and weaknesses. What are the divisive issues? Is it a drug case? If so, do we need to ask jurors about their feelings on drug laws? Is it a gun case? Do we need to speak about gun control? Is there a cooperating witness who got a deal? A witness with a criminal background? Mistakes in the police paperwork?

Once we know our case, we can get ready for jury selection. Jury selection is the process of selecting fair and impartial jurors for your case.

The court weeds out the unqualified jurors – those with medical or family issues or those that cannot be fair to one side or the other. The prosecution uses challenges on jurors sympathetic to the defendant and the defense uses challenges on jurors sympathetic to the prosecution.

This is educated guessing at its best. We’ve heard these citizens speak for a half hour at most. We know a little about their family history, education, and work. Now,we must decide if they will fit our case.

So, how do we decide? In every case, an attorney has an idea of their ideal juror. The ideal juror has a particular background we identified during preparation. It changes in every case depending on the facts.

With this background in mind, we ask questions to jurors. These are questions based on the divisive issues. I describe the case a little. I ask jurors’ feelings on gun laws. Or drug laws. I tell them one of our witnesses got a deal to testify and watch their reaction. I describe why DNA is important or is not important in this case.

Their answers are important. So are their reactions. How a juror says something is just as important as what they say. Did one juror sigh when I asked about DNA? Is one asleep? Is one not paying attention? Do two jurors argue with each other?

Its an inexact science at best. It’s the only time in the trial, I get to speak directly to the people who decide the case. While I’m sizing them up, they’re also sizing me up. I let them know their time is important, just like this case. I relate to them using humor and letting them see my personality. Hopefully, they see how well prepared we are too.

If the jury is against you from the start, then your terrific opening and closing won’t matter. Your dynamite proof won’t matter.

We do the best we can and never know if our guesses are correct until the verdict.


  1. It seems like a very stressful process! Do you ever find yourself studying the jury during trials and trying to gauge their reactions to certain things?

  2. All the time, whether i mean to or not. I appreciate when they nod with understanding, smile at my witness, or cross their arms when the defendant is testifying.

    Of course, I've been burned with what I interpreted as positive reactions before.

  3. What are good questions to ask the jury that won't lead to simple "Yes" or "No" responses?

    The problem I find during Voir Dire is asking questions that will get the jury to open up instead of them just sitting there silent.

  4. I start with some generic issues: introduce myself and co-counsel, that we are not there to pry into private lives, that the defendant and the People get a fair jury, and a little bit about the case. I then tell them the way we do this is by asking them questions and getting their honest feedback. This takes about one to two minutes.

    I start directing questions at individual jurors when no one raises their hand or answers a question. "Ms. Smith, tell me your feelings on marijuana. Do you think it should be legal? Why?" "Mr. Fritz, what do you think about the gun laws?"

    Ask open quesitons pointed at particular people. Use questions like what do you believe, what do you think, what do you feel.

    Then use a juror's answer and bounce it off another juror. After Ms. Smith told you she thinks marijuana should be legal, ask Mr. Johnson "what do you think about what Ms. Smith said? Do you agree? Why or why not?"

    Use extremely simple hypotheticals to drive your point home. Once you lay out the quick hypo, ask the jurors what they think. No one responds? Start asking individual jurors. Especially the ones you want to know more about.