Jury Selection: It Is Not Science; It Is Social Science
This program, taught by Russo & Gould LLP Partner Florina Altshiler, an experienced trial lawyer, will address key concepts in the psychology of jury selection. The course will review the social science behind selecting a jury in civil and criminal matters, helping attorneys learn to identify and eliminate jurors who will be problematic to their theory of the case, while also establishing the rapport necessary to engage them with their narrative of events. The program offers practical guidance on voir dire tactics, including best practices in interviewing jurors, introducing the case during jury selection, and avoiding objections during the selection process. It also addresses how to effectively use peremptory challenges. In addition to strategy, the course also covers the statutes, and procedures that govern jury selection. Finally, the presenter will discuss COVID-19 implications for jury trials, the latest updates to court procedures, and strategy.
Florina Altshiler: Hello, everyone, and welcome to this presentation on the topic of jury selection. My name is Florina Altshiler, and I'm an attorney with the law firm of Russo & Gould, a insurance defense litigation firm based out of New York City.
So, jury election, what is it? Are we really selecting a jury? Or are we engaging in the practice of juror rejection? Well, jury selection is more like juror rejection than jury selection. This is your only chance to speak to the jurors. Instead of just talking at them, you have the opportunity to speak with them. This is your opportunity to ask them questions and figure out whether they're suitable for the type of case that you're about to try. So, are they able to be fair and impartial, or do they have any preconceived biases that would likely make them a rejection candidate? So, jury selection is your first and best opportunity to also introduce yourself and introduce your case to the potential jury pool. While you're picking your jurors, the jurors are also beginning to form opinions about the attorneys, including you, and about the case.
Before jurors can be selected or rejected, there's a juror qualification survey that they submit. In order to qualify for a jury service, there are several questions that jurors need to answer affirmatively. For example, a person must be a US citizen to serve on a jury. If they're not, they're going to be automatically disqualified. Their name and address must be correct. The purpose of that is they must be a citizen of the jurisdiction in which they are appearing as a juror. So if they don't live in the county or the district, then they would be automatically disqualified. They need to be able to read, write, speak, and understand English. They don't need to be able to understand it really well; they just need to be able to understand it. So if it's somebody's non-native language, that does not result in an automatic disqualification. Of course, if someone communicates to you that they're not able to understand what you're saying, certainly that could result in a disqualification.
If someone has a disability that may require an accommodation to serve as a juror, that's not going to disqualify them, but it will depend on what that accommodation is and whether or not the accommodation is one that may reasonably be made. So, some examples, jurors who are nursing mothers may need an accommodation for breaks, and those breaks are routinely provided. A juror, however, who is unable to hear and does not have hearing aids, and there is no accommodation to allow the person to be able to hear sound, is probably not going to be a suitable juror. Of course, if the accommodation is available and able to be made, then it's no longer a problem. There's a question about whether or not the person has a physical or mental disability that would impair their capacity to serve as a juror. If yes, they would need to provide proof of that impairment, and they may be disqualified from service, provided that they have proof.
Another question that's asked is whether or not they've been convicted of a crime for which they've been sentenced to imprisonment for more than six months and have not been pardoned. Anyone who's been convicted of a crime with a sentence of six months or more may also be disqualified from jury service. Within the past three years, if they've already served on a jury, they may also be disqualified. And if someone's an active member of the military, they may get excused. Other than those specific examples, there is no automatic disqualification. Now, people always say, "Well, no one wants a lawyer on a jury. Can a lawyer serve on a jury?" They absolutely can, and being an attorney is not an automatic disqualification. However, many attorneys don't want other attorneys on their juries, mostly because they feel like they're going to be judged too harshly or not judged impartially as should be the case. The reality is, those people who can't talk their way out of jury selection are the jurors that remain.
The objectives in jury selection are several. First, one of your main goals during jury selection is, of course, to build a rapport with those jurors and to build trust. You want to have a credible presence where the jury is going to believe what you say, starting from the very beginning. And so, you don't want to misrepresent anything, you don't want to oversell anything, and you certainly don't want to engage in arguments with any potential jurors. The next goal of jury selection is to poison their minds to believe or become educated to the facts of your case in a way where they are now subscribing to your theory of the case. So, depending on what jurisdiction you're in, you're not going to be able to share very many facts of your case because jury selection is not really about letting the jury know what the case is about, it's about finding out what the juror's opinions and positions are to weed out those who cannot be fair.
That being said, it is absolutely appropriate and commonly done to go ahead and use analogies and hypotheticals and use facts that maybe are not the facts of your case, but that are analogous to the facts of your case. And in doing so, those jurors will be educated onto your theory of the case, and may later on help to educate each other to your theory of the case. So you want to explore whatever the issues are that are central in your case through hypotheticals, through analogies, and through scenarios that you essentially test on them by getting to hear what their position is when presented with that type of hypothetical.
The next objective of jury selection is to reject jurors, to find and eliminate those jurors who are not favorable to your theory of the case. So if you use voir dire simply to find the jurors who you want to strike, you are missing out on those other two objectives, which is building trust and also influencing their way of thinking, which is part of the value of jury selection. Ideally, what you're accomplishing is all three objectives, not just the one of eliminating the people who may be biased.
When done effectively throughout the course of having this conversation with the jurors where you're getting to know a little bit about them, where you're testing out different hypothetical scenarios, where you're understanding what their opinions may be and which way they may lean, you're also building trust with that pool and you're also laying the groundwork for your theory of the case, and hopefully getting them to think the way that you want them to think so that when they do learn the true facts of the actual case, they can likewise employ those analogies to see the facts of your case, similar to the hypotheticals that you planted, starting with jury selection.
So, what is jury selection or voir dire, and how does it work? What happens? Well, voir dire involves finding fair and impartial jurors that will not prejudge the case. Of course, every single human being who has lived any number of years here on earth has prejudged a wide variety of fact. People have opinions, people have positions, and they don't come into the courtroom as blank slates. So the questioning process of jurors is called voir dire, and this is an examination that's going to be conducted by you as the attorney if you are in state court, or by a judge if you are in federal court. In federal court, the ability to be able to plant the seeds for your theory of the case and for you to build trust with the jurors is going to be quite limited because the judge is the one that's doing the questioning. In state court in most states, where the attorneys are allowed to do the questioning, you're able to effectively accomplish all three objectives of jury selection because you're the one that's planting those seeds, asking those questions, and having those conversations with the jurors.
During jury selection, questions are going to be asked to find out whether any individual on the panel has any personal interest in the case or knows of any reason why they cannot render an impartial verdict. What we want to do is detect and eliminate that bias. And when I say eliminate that bias, I don't mean make the person think our way and switch. I mean, strike them from that jury. If somebody is staunchly for or against something in the process of voir dire questioning of that jury, you're not going to be able to get them to change their mind and think differently. So, really, what you want to do is detect when somebody is biased against your side, and then use hopefully one of your for cause challenges to strike them without having to use a peremptory challenge. And I'm going to talk about the different challenges and how those work.
But if a juror tells you that they are even just a little bit more likely to lean toward one side versus the other, that would be the basis for a for cause challenge. And the nice thing about for cause challenge is, is we have an unlimited number of them. If, however, we can't get a juror to be stricken for cause, we only have a limited number of peremptory challenges. Other questions are going to determine whether any panel members have a prejudice or a feeling that might influence them in rendering a verdict. If they do, that's going to go toward their bias. If that bias can be established, then that's going to be the basis of your for cause challenge.
Any juror having knowledge of the case should be able to explain this knowledge to the judge. And again, that's going to likely go to bias. Certainly, if you were a witness to the accident at issue, this is not an appropriate case for you to now sit as a juror in. There's going to be other cases where you have nothing to do with that case, where you would be a more fair and impartial juror. Sometimes jurors may be distantly related to a party or a witness that's going to be testifying in the case, sometimes they may know somebody in the case as friends or acquaintances. Those are things that will be explored further to understand the nature of their relationship and interactions with those other people to make a determination as to whether or not they can be fair in this case.
Obviously, if someone thinks that because, let's say, they have a police officer sibling, and a police officer is going to be testifying in this case, and it's not the same police officer, but they just both happen to be police officers. And as a result of that, if they think that they would believe the testimony of a police officer, just a little bit more than the testimony of a lay witness because they have a sibling who's a police officer, that right there would be the basis of a for cause challenge because that juror has a bias toward law enforcement, and law enforcement is going to be testifying for one side versus the other. So, if you could get the potential juror to admit during the voir dire process that they are even just a little bit more likely to believe the one witness or one side over the other, you will be able to establish your for cause challenge.
So now I'd like to talk to you about the dos and don'ts of voir dire. How do we go about asking questions, making statements? What do we do, practically speaking, during jury selection? Well, first you want to keep things simple. You want to think of the jurors as your neighbors. When you talk with them, you talk in simple everyday language. If they ask you what your trial is about, you might say, "I represent a young boy who was hurt when he fell off a merry-go-round." You're not going to say, "I represent a plaintiff that's seeking to recover damages for negligence." No one knows what that means. Avoid using legal language and big words. Keep things simple and easy to understand.
You want to avoid talking too much about yourself. Of course, you want to introduce yourself to the jury, but don't go overboard. Remember that one of the goals of voir dire is to know who your potential jurors are, so you want to let them do the talking and you want to find out what they have to say. If you are doing all of the talking and just asking them to agree with you, many people are going to agree even when they disagree. And you're not going to know what their true opinion or position on the issue is, unless you ask them questions.
So what do I mean by that? Well, instead of saying, "Are you comfortable awarding any amount of money?" and people might say yes, people might say no, you might want to say, "How do you feel about large sums of money being awarded? Tell me about that. Do you believe there should be a limit? Why or why not?" Now you're going to get in into what their opinions and positions are versus just asking them a leading question, getting them to agree with you and moving on without really understanding how they feel. You might want to ask them things like, "Tell me about a time when you had an interaction with law enforcement. How was that?" You might want to ask them, "Have you ever been accused of something you didn't do? Tell me about that."
Of course, these questions are going to depend on what side of the case you are on and what your theory of the case is. If law enforcement is involved, if this is a criminal case in nature, you want to know what side they're on, whether they lean for or against law enforcement. And certainly, there may be people who are neutral. Neutral's great. Neutral means there's no bias. Neutral means that they can be fair and impartial and are perfectly suitable and appropriate jurors. But there may be jurors who lean for or against law enforcement. And certainly in a criminal case, depending what side you're on, if they're leaning against your side, those are people that you want eliminated from the potential jury.
Another thing you want to keep in mind, is having an effective 30-second introduction ready. So you might say something like, "I want to know a little bit about each of you, whether or not you're married, whether or not you're employed, your occupation, your hobbies, children, occupations." Now, these jurors will have completed their juror questionnaires for you to be able to cross reference, but you want to get them talking about themselves. You will have received their questionnaires at the very beginning before you even start talking.
What I like to do is I like to go through those questionnaires, have them in the order in which those jurors will be seated, and I highlight things on the questionnaires that I might want to ask those jurors about. So maybe somebody belongs to an organization, maybe they belong to the NRA, maybe they belong to a liberal or conservative organization or political organization that they've listed, maybe they have an occupation in law enforcement, for example, or accounting or the medical field. If it's a medical malpractice case and somebody's spouse is a physician, I'm certainly going to want to know more about that and have it highlighted on the questionnaire and asked questions about it.
I'll then do a quick intro of myself and say, as an example, "I will introduce myself. I'm an attorney. I've been practicing for over 15 years. I live right here in the city of Buffalo and so on and so forth." I wouldn't talk for too long, a bit about 30 seconds is a good general introduction. And then I would turn to whoever my juror seated in the first seat is and say, "Sir, whatever their name is, would you please introduce yourself?" And have them start talking and have a conversation with them. You really want to focus on having the jurors doing the talking more than you doing the talking. You want to make them feel comfortable. People like to speak about themselves. They may not be comfortable speaking in front of an audience, but they're going to be comfortable when the topic is themselves.
You might want to remind them that everyone's required to serve on jury duty, but not everyone is required to serve on this specific case, and that the process of jury selection is to determine whether or not they individually are appropriate for this case. So if this is a sex crimes case, and it makes somebody personally uncomfortable, there may be a contract dispute trial going on down the hall in the same building, and that may be a more appropriate case for them. They're not required to sit as jurors in this case, if there's something that's going to make them either uncomfortable or unfavorable, or if they've prejudged the case before they even know any facts about the case.
Certainly, if any juror does not want to be there and serve on that jury, I wouldn't want them there serving on that jury. If they're not going to pay attention, if they're not going to be fair, if they're not going to be open minded, they're not going to be a good juror for either side. And I wouldn't want to roll the dice to see where they're going to end up with the verdict if they can't be bothered to pay attention during the trial. The goal is going to be for the lawyer to, of course, learn about each juror, to find out whether that juror is going to be a suitable match for that case, while at the same time, persuading that juror that the lawyer is likable and also a match for that case, and that the lawyer's theory of the case is one that that juror is willing to buy.
There's going to be a little bit of both questions about facts and questions about feelings, and either of those can feel intrusive to a juror. So since jurors are going to decide cases on feelings and then use facts to justify their decisions, fact questions are most useful when there are introductions or shortcuts to those feeling questions. And if there are questions about sensitive topics, I always tell the jury that they can always individually ask to step outside and that we don't need to pursue any particular question or topic in front of the entire audience. I would step outside, counsel for the opposing side would step outside, and the juror would step outside, and we would continue that conversation in a more private setting. So it doesn't mean that we stay away from topics that make people uncomfortable, but we do always want to afford them the opportunity to do so in private versus in front of a pool of 20, 30, sometimes a hundred different people sitting there.
You want to pry, but you want to do so tactfully. So, if you think about cocktail parties or social events, it's not a good idea to talk about religion, politics, money. In much the same way, you need the juror's permission to delve into their private lives. And people generally like to talk about themselves when they don't think they're being judged. So if a juror thinks you're genuinely interested in them as a person, they will be more willing to listen to you later as you present your case. If a juror seems uncomfortable talking about a certain topic, you have the option of leaving that subject alone or, what I prefer to do, is ask the juror if they would like to speak to the attorneys in private, outside the presence of the other jurors.
The problem with leaving the topic alone when they feel uncomfortable, is you're not going to know what's making them uncomfortable specifically. So for example, if this was a sex crimes case, and you ask a question of whether or not they've ever been a victim of a crime or know someone who has and they become uncomfortable, you don't know whether they themselves were sexually assaulted just a few months prior or a distant relative was, or maybe they've been accused wrongfully, or not, of committing a sexual assault. And so now when you have a sex-based case and the person's uncomfortable but you don't know why, you don't know whether or not they can actually serve as a fair and impartial juror in this case. Leaving that topic alone will potentially end up leaving a very biased juror on your jury. So you want to pursue it further, but you don't want to pursue it in front of all the other jurors, and you don't want to pursue it in a way where the juror becomes upset or angry with you because you are the one that's making them uncomfortable.
I'd like to let them know at the very beginning, before I even ask questions, especially if the case involves a sensitive topic, that I'm going to need to ask some uncomfortable questions. And that if I do, and if they want to step outside, that they can just let me know and that we will do that. I will also let them know that I'm not targeting any one particular individual, but that these are questions that... And I also don't say I, but I say we and include my colleague, which would be opposing counsel. I say that we both will want to know answers to these questions because that's the nature and subject of the case.
It's really important also, when having these conversations with the jurors, to address them by name. Studies have shown that hearing your own name activates the brain in a way that's entirely different from when we hear the names of others. And so, people like to hear their own name. Do your best to use the potential juror's name as they will appreciate the effort. I always like to ask them how they pronounce it so that I'm not butchering it. I also create a seating chart where I put in the name of each juror as they're being seated so that I know who's where versus just having that list and hoping that I'm picking the correct name. When a name is difficult to pronounce, you want to ask them how to pronounce their name and you want to also ask them whether they would prefer to be called by another name. If they would, then you want to write that down, write in that seating chart. And what I do is I write it down phonetically once they tell me how to pronounce it so that, hopefully, I'm not butchering it.
Another really important thing during this dialogue that you're having with the jury is listening. You don't want to just check off asking questions, even when they're open ended off of your list. You want to listen to the answer they're giving you. Much like in a direct examination where you have to listen to the witness and hopefully loop your next question into whatever their last answer was, you want to establish a dialogue with the jurors, listen to their answer, and oftentimes follow up on their answer. Sometimes with them, sometimes with the next juror. So maybe Stacy tells me that she thinks that slaughtering chickens in the backyard is a healthy practice. I may not ask her any more questions, because I'm making my own judgment in the back of my head about what she just said, but I might turn to the juror next to her and say, "So John, what do you think about what Stacy just said?" And continue a dialogue off of what Stacy said with what other jurors' attitudes and beliefs are.
You're visiting with the jury to learn about their attitudes, their experiences, and their potential prejudices. You will learn a great deal more from open-ended questions than from head-nodding questions. You're going to learn nothing if you're leading them. You want to call on specific individuals while you're doing this. Don't just make the mistake of asking the pool and waiting for volunteers. The people who have strong opinions may feel like their opinions are not welcome and may not be excited to volunteer. And so they're just going to sit there and nod along or just sit there, period. And you're not going to know what they're thinking.
So you have two options. You could call on them systematically by going from chair one to chair two to chair three, or you could go ahead and just bounce around randomly to people. I start systematically from one, two, three but if I see that somebody has a visual expression that maybe is showing some dissatisfaction, I might jump over to that person and see how they're feeling. I try to keep check marks or excess on my seating chart to remember if I skip around who I haven't called on so that I know to get back to that person. Now, the key when you're asking these questions and jumping around to individuals is to remember to listen to the responses. If a juror says something that sounds problematic, use the response to educate the other jurors. As you establish a rapport with the jury, try to use examples to explain your theory of the case and the concepts that are involved in the case.
Now, I'll talk to you about some things to avoid. You always, of course, want to avoid embarrassing the jurors. Treat the jurors with dignity and respect, afford them the opportunity to step out when necessary, if you sense a discomfort, or if you know that the topic is not one that should be shared publicly. If you're involved in a case that's going to concern alcoholism, address that issue with the perspective jurors. Ask them whether any of them or any members of their families have ever had a history of alcoholism. That's an important topic to discuss.
One approach would be to ask the judge to ask these questions directly of the perspective jurors. You could ask the judge to tell the jurors that they can approach the bench if they wish to discuss the matter outside the hearing of the rest of the panel. If the judge won't ask these questions, let the jury know that you're not asking the questions to embarrass anyone, but that you're asking the questions because it is your duty to make sure that the jurors can be impartial. Afford them the opportunity to step outside with whatever their answer may be to that question.
Another thing to avoid is legally dense language, legalese. If a non-lawyer approached you at a cocktail party to tell you the story about how their teenager was injured in a high school hockey game, you wouldn't start talking about the assumption of risk. Ask other questions that would get you to the same conclusion. There are always ways to get at the information you need without using specific legal terms. If you do use legal terms, make sure to define them. Always be civil and professional. Don't belittle your opponent. If you act unprofessionally, the jurors may lose their respect for you and may hold it against your client. You should be well groomed and professional in your appearance. If it's your nature to be flamboyant, temper it, or you may lose the jury.
Now, you want to know your judge. One, you want to know whether or not the judge is going to be sitting in on the jury selection as some jurisdictions do, or whether they're going to be sending you into a separate room unsupervised, as many places in New York do. For voir dire, it's crucial that you know ahead of time whether the judge is going to be present and how far the judge, if present, will permit you to get into the facts of your case. If the judge limits your inquiry, stay within those limits. The last thing you want is to be embarrassed by a judge who's supervising jury selection when they tell you to move on from different topics.
If the jury selection is not judge supervised, of course, there's going to be more room for abuse. Hold the other attorney accountable, and don't be afraid to tell the other attorney to step outside if that attorney is going too far into the facts. Be ready with the phone number to call, either the judge or their law clerk, and know where to walk to get them in person, if need be. Be prepared to not only ask the other attorney to step outside, but to go ahead and call for a ruling on whatever the issue is if that other attorney is doing something inappropriate.
Another key thing to accomplish during jury selection is to remember that you have a client and to humanize your client. It's a lot easier to humanize an individual than it is to humanize a corporation. Have the perspective jurors take a good look at your client. So when you have an individual, you may want to bring them so that they are there to be seen. If you have a corporate client, you may want to have a representative present. Now, of course, this is going to depend on how and where jury selection is conducted. When it's done in a courtroom with a judge present, then the clients would be present. When it's done as it is in many places in New York, in a separate room, without the presence of a judge, the clients are typically also not present.
You're going to tell them the name of the person or corporation. You're going to ask if anybody knows anyone that works for the company. And that's all to establish whether or not there may be some bias. At the beginning of the trial, I usually introduce all of the parties and their attorneys, and inquire if any of them knows or recognizes anyone else in the courtroom. Be prepared for the answers. If someone does recognize somebody, you're going to ask, how do they recognize, so and so? So for example, my client's name is Jane Smith, "Ms. Smith, please stand up. Now, do any of you, simply by looking at Ms. Smith, already believed that she shouldn't be successful in this case? Does she remind you of anyone? Can you give Ms. Smith her day in court? Will you hold it against Ms. Smith that she's bringing this lawsuit as a way of resolving this dispute? Thank you, Ms. Smith. You may sit down."
By taking this simple approach, you will humanize your client even if the client is a corporation. You let the jurors see the representatives as people who are affected by the case. I think it is a huge mistake, when representing a corporation, not to have an individual present as a representative and face for that company. The last thing that you want is represent something that feels very foreign and non-human, without having a person or individual present there as the face of that company.
In order to gain credibility with the jury, you want to divulge your weaknesses or the problems with your case, lawyers who bring out the weaknesses of their case during voir dire and talk about those problems in their own way, have a much better chance to diffuse those problems at that time. So let's say you're prosecuting a case and you don't have any DNA. Well, no big deal. You probably don't need DNA because you have a confession, or you have somebody else IDing whatever it is that happened. So you have other evidence that's going to establish what you need to establish. Of course, the other side is going to counsel over the weakness or lack of DNA. So what you want to do is you want to own the weakness and get ahead of it and address that it's absolutely not necessary. So, you're going to ask how people feel about DNA. You're going to ask whether or not they believe that it's absolutely necessary in every single case, and why or why not. And have that conversation.
You're going to end by asking, for that inquiry, whether or not if the evidence proves beyond a reasonable doubt that the person committed the crime is charged, they'll be able to convict even in the absence of DNA. And if somebody says, no, then right there, you may have a challenge for cause because there's no requirement that DNA be present if there's evidence beyond a reasonable doubt that they accept. So, that's how you address whatever the weakness is, and that's how you identify whether there are jurors that need to be eliminated from the jury because they have a bias that's going to prejudice them in this specific case. Lawyers who do this gain credibility for being upfront with the jury. It also avoids letting opposing counsel take shots at your case by exposing those key problems. So it doesn't come as a surprise when the other side says it first, you will have owned it already.
In your closing argument at the end of the trial, you can bring it back to the promises that they made during jury selection. So let's say I'm a prosecutor and I don't have DNA, and I spoke about that during jury selection and the jurors all committed to me, saying, "Look, if we do believe beyond a reasonable doubt that this person did it, we don't need any DNA." In my closing argument, I will remind them, "Look, I told you there wasn't going to be any DNA. There's no DNA and we don't need any DNA. And remember how each and every single one of you promised me that if you believe beyond a reasonable doubt that this person committed this crime, you don't need DNA." So that's how we connect starting with jury selection, all the way through to closing argument where it all kind of clicks.
Your success in jury selection is going to rely on your interpersonal skills, your ability to stand in front of a group of people and make them like you, trust you, and share personal information with you. You want to relish the fact that jury selection, especially with a time limit, is not science and realize that a social nature gives you a headstart on connecting with jurors. Now, speaking of time limits, you want to know before you go ahead and start whether there is a specific time limit. Some judges will impose self-imposed time limits on your voir dire. They might give you 30 minutes, they might give you an hour. If they're sitting there, supervising it, you want to know that ahead of time. If they're not, of course, you're going to have more leeway.
There are very few absolutes when it comes to selecting juries, but you can do a few things to maximize your time and to make the selection process somewhat less random. You want to learn acceptable shortcuts, make educated guesses, and develop gut instincts about people. Do not strike jurors for inappropriate reasons. Attorneys are not allowed to exclude jurors solely based on race, religion, ethnicity, or gender. I'm certain that all of you are familiar with the Batson v. Kentucky case, Batson challenges from 1986. So this is a US Supreme Court decision that ruled that a prosecutor's use of a peremptory challenge in a criminal case. In other words, the dismissal of jurors without stating a valid cause for doing so may not be used to exclude jurors solely based on their race. So in other words, you have to have a race neutral reason for using your peremptory challenge. This is the I-don't-like-your-face challenge essentially.
You don't need to have any reason to strike someone with your peremptory challenge, but your reason has to be race neutral. So if your reason is based on race, that would be subject to a Batson challenge, and is not appropriate. If your reason has nothing to do with race, maybe you don't like their shoes, maybe you don't like the way they looked at you, maybe you don't like the fact that they have seven dogs. All of that is perfectly fine, but it can't be based on their race. The court in the Batson case ruled that the practice violated the equal protection clause of the 14th amendment. The case gave rice to the term Batson challenge, which is an objection to a peremptory challenge based on the standard established by the Supreme Court's decision in this case. Subsequent jurisprudence has resulted in the extension of Batson to civil cases and cases where jurors are excluded on the basis of gender.
There's another case, Taylor versus Louisiana, which decided that jurors cannot be excluded on the basis of gender. Juries should represent a cross section of the community. There's also the US versus Blaylock case, which is an Eighth Circuit Court of Appeals case from 2005. There, there was an attempt to extend Batson to cover challenges based on sexual orientation, which failed. The Eighth Circuit of Court of Appeals rejected a defendant's criminal appeal in Blaylock because it found that the prosecution had offered legitimate non-discriminatory reasons for striking the panel member. The court did not consider whether the Batson challenge rule applied, but its opinion expressed doubt that it did.
Now, remember, during jury selection, it's a two-way street. As the lawyers are evaluating potential jurors, jurors are also making their initial judgements about the lawyer's competence and fairness. Everything you do in front of the panel must be even handed and must appear fair. Jurors require absolute confidence that you will present your case honestly and that every word that comes from your mouth is true. Your appearance is going to matter. As you are making assumptions about the perspective jurors' appearances, they're doing the same thing with you. Small details are going to be noticed, your shoes, your belt, your jewelry, hair, fingernails, watch. When you stand before the jury, you want them to focus on your case and what you have say, not your clothes. Prepare ahead of time.
Now, one of the best ways to prepare in terms of preparing your case, is preparing outlines. So as you prepare to cover relevant legal topics, consider a number of open-ended hypothetical questions to bounce around the panel to stimulate discussion. Do not use a script. Do not write an essay or a speech. It's super boring, and nobody wants to hear you stand there and read it. Jot down a few open-ended questions that you might want to ask to start a conversation. Listen to what they have to say, ask logical follow-up questions based on whatever their answers are. Working from an outline is going to provide you more freedom to address the specific issues raised by the panel. It's also going to create an atmosphere that's going to be conducive to free discussion.
You want to adjust your expectations. Consider how much time did the judge allot for jury selection. If you have a limited number of minutes to go ahead and go through the issues in your case, you really want to focus on what the main issues are. Jurors predisposed to not like you are going to continue to not like you. Don't argue with them. Just identify the fact that they don't like you and make a note to get rid of them. You're not going to change their minds. And in fact, the process of even attempting to change their mind is going to make you look unfavorable to the rest of the jury. Jurors with the bone to pick with the system will not be swayed by the majesty of your courtroom presence. It's just not going to happen. Jurors who have an opinion that's not favorable to your theory of the case are going to maintain that opinion. Your goal is to identify the opinion and then strike them from the pool.
Erase any delusions that it's possible to change a panelist's deeply held belief during jury selection. Jury selection is your opportunity to identify and get rid of problematic jurors. It is not an opportunity to win their hearts and minds. Do not fall into the trap of arguing with jurors in a pointless effort to change their opinions. Don't worry that somebody else is going to hear what they said and that they're somehow going to be poisoned. Yes, sometimes that happens, but most often, what happens is the other jurors have their own opinions. So what you want to do when somebody says something that's not favorable, is you want to turn to the next person and ask them what they think of what was just said. They may very well agree, and then you know that that's another person you need to strike, or they may disagree, and then you know that that person is fine to leave, or the other side may strike that person.
When a juror confronts you with a hostile position, thank them because they're doing you a favor. A confrontational juror exposes not only their bias, but also the bias of anyone who nods their head in agreement. Get rid of all of them and move on. Let's say, I represent a female Middle Eastern client, and somebody says that they hate all Muslims. I say, "Thank you for your honesty. I really appreciate that feedback. What about you, Mr. Jones? How do you feel about Middle Eastern people?" And that's it, I'm not going to say anything that's judgemental. I'm not going to give any hint that that is a position that I, of course, disagree with. And I'm not going to try to convince them otherwise. I'm just going to say, "Thank you for your honesty," and move on to the next person. And of course, I'm going to strike them from my panel.
Now, I mentioned earlier that you're going to be getting your questionnaires and that these cards are going to provide you with some minimal information about the people you have. Don't panic, highlight the information that you think warrants further inquiry. Depending on the jurisdiction, you should be provided with, at a minimum, the juror's name, age, address, occupation, length of employment, spouse's name and occupation, the number and ages of any children that they have, whether the juror has any prior jury experience and involvement, if any, in prior criminal proceedings.
The information should at least speed up the getting-to-know-the-panel process, especially if you go through it with a highlighter and mark whatever you want to ask more questions about. You can transfer this information into your handy-dandy seating chart, as I like to do. So on my seating chart, I'm spelling the juror's names phonetically so that I'm noting how to say them. And then I'm going to, in shorthand, write out whatever it is that I want to know about them and remember. So I might put an F or an M for their gender. I might put whatever their noted occupation is, plumber teacher, student. I'll note if they have any experience with law enforcement. I might write sister cop or spouse corrections, whatever it is that's on that jury questionnaire. So I just jot down a few words that I know I need to look for and ask more questions about.
So, what are some of the things that you want to look for specifically? Well, you want to look for signs of stability, jurors who have a stake in the community. Length of time employed at the same job or married to the same person are always good signs. Jurors who have invested in a house or have children attending local public schools are more likely to take to heart the quality of life issues. Remember that jurors do not check their self-interests and attitudes at the courthouse door when they arrive for jury service. A juror's receptiveness to a particular case is going to depend on the extent to which the facts and desired outcome are compatible with their collective belief system. So never underestimate the human factor in jury selection.
You want to learn as much as possible about the communities and neighborhoods in your jurisdiction, because you're going to be provided with the juror specific neighborhood. So you'll know the name of the neighborhood that they live in, but if that's meaningless to you, that's valuable information that you're really not optimizing. People tend to adapt the collective attitudes of their communities. So if someone lives in a very liberal community, they may be more liberal. If someone lives in a very conservative community, they may tend to be conservative. So for example, police are perceived differently in various parts of town, and to some extent, so are perpetrators. Getting to know a little bit about where jurors live is going to tell you a little bit about how they live and what issues and challenges they may bring to jury service.
You want to always observe the jurors, not just the juror that you're speaking to. So when the panel enters the courtroom to be seated, stop what you're doing, respectfully stand, and watch everything the members of the panel do. Pay attention to how they interact with each other as these relationships will likely continue through the week, and you need people who can work together in groups. Observe what jurors carry in their hands and how they're dressed. Are they carrying any literature, a magazine, a book? What are they reading. Jurors often bring reading material, which is an insight into their personalities and political affiliations. Jurors that pride themselves in being different and setting themselves apart from the rest in the way that they dress or hairstyle could potentially hang the jury. Prosecutors want jurors capable of collective cooperative action and give them appropriate facts on which to act. Observations about prospective jurors' social skills can be telling and should not be overlooked.
When you question the panel, do not go straight down the rows, asking the jurors to recite. Remember in law school when professors did that? You completely zoned out when you knew it was not your time to recite. Jurors are going to do the same thing if you let them. If they know you're going in order of one, two, three, four, number six is taking a nap because they know they're not being called on. If you're bouncing around a little bit, they will tend to be more alert because they don't know when they're up next. So bounce your questions around the room and understand that you do not need to spend the same amount of time with each juror. It is unnecessary to address every member of the panel since only the first 16 or 17 really have a realistic chance, unless there's a lot of being people being kicked out for cause which is going to happen earlier on.
Read their questionnaires, form basic opinions about their desirability as jurors, and know which ones you may want to spend more time with based on the answers on their questionnaires. So prioritize how your time will be spent and on who. So put away the podium and the notepad, use open and inviting body language, potential jurors should do most of the talking, not you. Reward open and honest jurors with positive verbal feedback. "Thank you, Mr. Smith for sharing that so honestly. Ms. Johnson, what do you think about what Mr. Smith just said?" Treat your conversation with potential jurors as you would when meeting anyone else in a social or business situation. Obviously, you don't interrogate people that you just meet at a cocktail party, or I sure hope not. If a juror feels that you're interrogating them, they're not likely to build a rapport that's necessary to encourage them to agree with your side of the case or to be comfortable to share their opinions further. With some jurors, you're going to feel comfortable but need to ask a couple of questions to justify that confidence.
On the other extremes, some jurors are just going to rub you the wrong way off the bat. Might be best to move on and mark for yourself that that's somebody you want to strike. You want to loop back returning to each of these jurors when seeking challenges for costs. Return to jurors again and again, until you either change your opinion of them or make a record for justifying their exclusion. What does that mean? That means get them to commit that they are not going to be fair and impartial. How do you do that? Get them to agree that they are just a little bit more likely to find for one side versus the other. And if they agree with that statement, then they're essentially agreeing with the cause challenge.
Remember that jurors must be engaged, and the best way to do that is involve them in an interesting discussion, ask open-ended questions that encourage complete, well-reasoned responses and get them talking early on in the process. Become a part of that discussion. Use the process to frequently involve jurors with whom you're uncomfortable. Ask provocative open-ended questions that require more than one word answers. Remember, you are teaching, yes, but your main goal is gathering information. Telling jurors the law is much less effective than having them verbalize the rationale surrounding the law. Use hypotheticals.
You're likely not going to get a straight answer if you ask, do you think you can be impartial in this case? A better practice is to ask questions that will get the juror's life experiences. Ask them what their job is, if they own their own business, what do their spouse and children do for a living? Are they a member of any clubs, any unions? Do they believe in the law and see value in its enforcement? Have they ever been treated unfairly by a police officer? Can you tell me about that experience? After they do turn to the next juror, "What about you, Mr. Smith? How do you feel about law enforcement? Have you ever had any experiences, positive or negative, with law enforcement?"
Once you identified the opinion of one juror, it's simple to ask, how many of you feel that way? Or how many of you disagree with Mr. Smith? This is going to start a conversation that's going to involve most jurors and will give you a good basis to begin to ask more involved questions on the same topic. From there, you can narrow the focus. Discuss the relevant issues to be contested in the case. A prepared attorney is going to know her facts and anticipate the defenses. So if you're trying a DWI case and the defendant was initially stopped for speeding, don't waste time discussing uncontested issues. For example, justification for the stop.
Now, I've mentioned challenges both for cause and peremptory. The parties on either side are going to ask that a member of the panel be excused or exempted from service on a particular jury based on the challenges that they raised. A person may be challenged for cause if questioning shows that that juror might be prejudiced. In other words, they cannot be fair. If the cause raised in the challenge is sufficient, the judge is going to excuse the individual from the panel, or you may have opposing counsel simply agree to that excusal. The key here is, there's no limit to the number of challenges that you have for cause. So be prepared to try and get as many people off as possible for cause. Make the most intelligent choices you can and then live with them. You don't get to overanalyze this after you move on. You will usually have the opportunity to speak with the panel after the trial. Use this as an opportunity to evaluate your decision making and improve your jury selection for the next trial.
Now, peremptory challenges are an objection to a perspective juror for which there is no reason assigned. So upon any peremptory challenge, the court will exclude the person challenged from service. The problem with peremptory challenges, is each party is only allowed a finite number of peremptory challenges. You want to know how many peremptory challenges you have before you go ahead and start jury selection. That's going to be defined in the law based on your jurisdiction. So if it's a state case, it's going to be defined by your state procedure, whether it's civil or criminal. If it's a federal case, that's going to be defined by the federal rules of either criminal or civil procedure, depending on the type of case that you have.
The number of challenges is going to vary by state, by type of case, and then, it's also going to vary by the subcategory of case. So if it's a criminal case, you're going to have more peremptory challenges, if it's a higher level felony versus a lower level felony versus a misdemeanor. If it's a civil case, that's going to be defined based on your jurisdiction. So you have a set number of challenges. To conduct an effective and efficient voir dire, you have to know why and how jurors can be challenged for cause. You have to know how many peremptory challenges you have, and you want to use those peremptory challenges wisely because once you run out of peremptory challenges, you don't have anymore, and you're going to be stuck with whoever else remains, unless you could get that person off for cause.
Make sure to read the jury instructions that are proposed before starting jury selection. I don't mean read them out loud to the jury. I mean, read them to yourself and be familiar with them. If a juror will not follow any one of those instructions, that can be the basis for a cause challenge if they indicate to you that that is a law that they disagree with or an instruction that they're just not going to be following. So make sure to be familiar with it so that you're prepared to ask appropriately phrased hypotheticals if you're struggling to get somebody off.
If it's a civil case, you want to ask about full exposure in a civil case and a juror's willingness to be able to award potentially an unlimited amount or full range of damages. And if they're not going to be willing to do that, that's a potential cause challenge. So remember that peremptory challenges, unlike cause challenges, are going to be limited in number. They do not need to be supported by any reason at all. However, if you have a race-based reason, you may be subject to a Batson challenge because a party may not use the challenge in a way that's discriminating based on race or ethnicity or gender. Remember that each side is going to have a limited number of peremptory challenges, which do not require any cause. Keep track of how many you use, keep track of how many the other side uses.
Once a challenge has been exercised, after each round of challenges is exercised, the clerk of the court is going to call the names from the panel and replace the challenge jurors, and then we start all over with the new jurors that are in those seats. After new jurors are seated, the procedure is repeated. At any time before the panel is sworn, a party may exercise a challenge as to any juror seated in the box, unless you're using a method where you have to exercise those challenges or pass. You want to be sure that you know exactly which method of jury selection you're using. Those methods are going to vary, whether you're in state court or federal court.
You want to know the federal rules of procedure if you're in federal court. If you're in state court, you want to know whether you're using the panel method, whether you're using the struck method, whether or not there's going to be other jurisdiction specific rules that are employed as to when and how challenges are exercised. So make sure to have a conversation with the judge and opposing counsel before you go ahead and start to make sure that you're familiar with the rules and following those rules so that you're not misguided into thinking that you potentially have more peremptory challenges that you do, or that you could still exercise a challenge when really you missed that opportunity.
So I thank you so much for joining me. And if anyone has any questions, you are welcome to go ahead and submit them by email. Thank you so much.