Jury Selection Tips in Criminal Cases
Thanks to the professionals with DecisionQuest, a jury consulting firm with offices across the country (including right here in the Twin Cities), for their jury selection tips. In a recent article entitled "Jury Selection: Myths and Realities," they provide the following suggestions to criminal defense attorneys and their clients during voir dire:
- Do try to make a good impression, but do not worry about whether certain members of your team are present or whether a jury consultant is sitting with you. It is important to have the client present, simply because his or her absence can be interpreted as not caring about the case. Do warn observers who are witnesses that they should come dressed appropriately in case they are introduced. Try to appear respectful of jurors’ time and their privacy, and be organized in your questioning.
- Do ask the judge for some form of individual sequestered questioning to avoid having to ask important but potentially embarrassing or personal questions in front of the panel. It is optimal to be able to talk individually with each potential juror, but this process may not be allowed in all jurisdictions. The justification can often be made that your particular case involves issues that must be discussed privately.
- Do come up with a profile of unfavorable and favorable jurors recognizing that experiences that are relevant to the case are more important than demographics. Pay particular attention to the occupational and socioeconomic status of participants, but recognize that people are sensitive about being judged based on what they do to earn a living. Because it is usually necessary to make some judgments based on individuals’ demographic characteristics, especially if voir dire is brief, consider the life experiences that individuals may have had that are related to their demographics.
- Do prioritize strikes focusing on the “worst jurors,” and have a system for rating jurors that the team can agree to use. I use a five-point rating system, the continuum of which goes from “two minuses” to “two pluses” with neutral in between.
- Do make sure that, if possible, you get a chance to see and hear each juror speak, even if it is just introducing him or herself. However, do not waste time thoroughly interviewing jurors who are so far down the list that it is highly unlikely that you will ever get to them. Obviously, you don’t want to make anyone in the “back row” feel different, but often the process involves following up with jurors scattered throughout the gallery as well as in the box. It is important to hear from each juror, but a great deal of time is sometimes wasted talking with jurors who will never be selected.
- Do encourage openness and honesty as norms, versus being fair and impartial, to create an atmosphere in which jurors feel free to express their potential biases. In the end, the jurors can be encouraged to be fair and impartial in their approach to the case, but after an atmosphere of disclosure is created.
- Do keep in mind that jurors will often say that they can be impartial, but you must trust your gut about whether or not that is true. Remember, most people are bad judges of their own biases, and may even believe they can overcome them, but sometimes their situation or their demographics would suggest otherwise.
- Do use the opportunity to present your case in a positive, or at a minimum, neutral light, and use voir dire to inoculate jurors about potentially negative issues in the case.
- Do ask the judge to request a sufficiently large panel of jurors to have comfort that if jurors do express biases, there will be enough jurors to complete your panel in the appropriate timeframe.
- Do not place undo emphasis on the non-verbal behavior of a juror, with the exception of grooming, clothing choices, and surreptitious indicators. Remember that the world has changed, and most jurors do not come to court in their “Sunday Best” anymore. The norm for a given age group and in society is important to consider. Body piercing, for example, is not an automatic sign of a rebellious personality in young people; it is actually quite typical.
- Have at least one other person who is skilled at jury selection attend with you to take notes, to remind you of missed questions or jurors, to observe the panel, and to provide another opinion. Jury selection is far too complicated a process to engage in alone.
Great tips. Jury selection is one of the most difficult things to accomplish in a criminal case. It makes a huge difference if you have the right panel deciding your case. Jury consultants are just one of many options to consider.
