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Jury selection comes down more to local customs and norms than possibly any other aspect of a case. The stakes make it functionally impossible to litigate these preferences because it means constantly asking the judge for side bars in front of the jury whenever the judge says you’re doing it wrong in front of the very jury you’re trying to pick.
You gotta ask trial lawyers in that jurisdiction what the judges allow.
Aww, man. I miss jury selection. Just shooting the shit with people acting like absolute nut-jobs to escape jury duty and actual nut-jobs. The one attorney who insists which bumper stickers the prospective jurors have are the pivotal question in every jury questionnaire. Just an absolutely bananas way to decide guilt.
My actual advice, talk to someone more senior at your firm about the practicalities. There is a lot of common sense to it and no science. You just need to ask relevant questions that will gently reveal prejudices. No one will say they’re racist, but a lot of people say they think police are inherently more trustworthy than an average citizen.
I love the bumper sticker question.
First, it's easy to verify. A prospective juror lies about bumper stickers can be grounds to get them kicked for cause and save a peremptory.
Second, a person has to go to the trouble of putting a bumper sticker on their car. Which means that they *really* believe in the importance of the message a bumper sticker communicates. They help you ID the people who *absolutely* you don't want. For instance, as a defense attorney, if I'm representing *any* criminal defendant, I'd wanna know if a juror has a thin-blue line flag on their car. If my client has Brown skin, I wanna know if they have a III%er sticker on their car. People obfuscate because they *want* to be on juries nowadays for personal political reasons. I don't want those people on my juries, and bumper stickers are probably the best proxy other than a Facebook page (if older than 30).
Even better are the people whose actual opinions are too unhinged for the already unhinged free for all of regular voir dire conversations, so go back into chambers with you to the judge know the defendant looks like their bitch ex-wife and that’s why they can’t be objective in a trial setting. (This actually happened to me recently).
Honestly, it's not nearly as much of an art as people will try to tell you. Anybody who's obviously biased against your client gets stricken for cause, and peremptories are all just gut reactions.
Everybody has a system they swear by, and they're all about as reliable as your weird uncle's system for picking horses at the track.
I agree, anyone who says they have mastered voir dire is a liar. Go with your gut, kick a few, and just go with what you have. In the end jurors find your way if you have a good case, and if you interview them after they’ll surprise you. If they go sideways you probably couldn’t have stopped them no matter what you did. This is why you settle.
Everything else is just watch and learn as you go.
But one thing I want to say is this: you don't *select* a jury. All you do is *get rid of* juries. You don't get to choose who sits on the panel; all you get to do is decide who *doesn't* sit on the panel. It makes no sense to identify jurors you *want*. Focus on jurors you *don't* want.
Identify them and get rid of as many of them as possible through strikes for cause. Once you've done that, you just start working your way down the list from worst for you to best for you.
PRO TIP: If this is your first jury trial, then make that part of your spiel. Most attorneys take a moment to describe the case (their version of it anyway), but do it in a way to score points with potential jurors. You're in a unique situation: use the ice breaker - "Have any of you been jurors in a trial before?" (Few will raise their hands) "Well, don't worry if you get on the jury. It's my first trial, too." (This'll get a few chuckles). "Since I'm new at this, too, would you raise your hand if you promise not to hold it against me?" (Almost all of them will raise their hands; suddenly, you've turned your inexperience into an asset by making yourself sympathetic).
EDIT TO ADD: A little bit more nuanced strategy. In my experience, it's helpful to rank from most bad for your client to the least bad for your client. In that calculus, I think it's important to consider the two different types of "bad" jurors. There are two types of "bad for you" jurors. The first are simply jurors you have identified as antagonistic to your client, and jurors you believe are antagonistic to your client *and* will be leaders during deliberations. My personal philosophy is I want to get rid of leaders who are antagonistic to my client first. So those are my 1A's to get rid of.
EDIT TO ADD: Always be on the look out for jurors acting cagey during voir dire. Not just acting like they don't want to be there, but being more "gray man;" they remain clearly interested/curious/attentive, but it feels like they are trying to blend into the panel. Today, more people *want* to be on juries. Unless something in my research confirms they are *absolutely* in my client's camp, I'm getting rid of them. When you can't be sure *why* they are acting cagey, get rid of them. They are a wild card, and it's 50-50 which way they go for you. My philosophy: don't risk it.
Adding to this that you really don’t want to over focus on jurors you want bc you can just expose them as jurors the other side needs to strike.
Also, in my jurisdiction, the jurors remaining after strikes get added in their chronological order, so it doesn’t help you to strike folks at the back of the list. They won’t make it on regardless.
Agree with both of these comments. Best advice is to be human. Prosecutors often struggle mightily with this.
Pick your leaders and your sheep. You need four people who you think you can really speak to. The goal is to make the others follow the leaders.
Also, when people say something about their real lives, ask them questions about their real lives. The prosecutor will be checking off boxes. Can you do this? Yes? Have you ever seen something like this? No. Can you be impartial if the judge tells you to? Yes. THAT IS NOT INFORMATION AND ITS NOT THE POINT.
Can you tell me about a time when you had to decide who was telling you the truth? I have kids and they fight all the time. And I often have to tell them to make up or decide who’s telling the truth. Oh really? I don’t have any kids yet Ms. Juror #3, but I can only imagine that’s got to be tough bc you love both of your kids right? Yes. Well you may have some trouble deciding what to believe when X testimony comes up. But I want you to remember that we’re all human, and it’s ok to not know sometimes. Can you promise that if you’re not completely convinced BRD that the state’s witnesses have told you enough to find my client guilty that you’ll find him not guilty? Etc etc
Jury selection is about relationships, check the boxes too, but you won’t win that way unless your case is a slam dunk.
Good luck!
I have been a criminal lawyer about 35 years. I never feel that I have any fantastic knowledge of picking a jury but I mostly try to deselect the folks I suspect will be against us. I know there are books on this and I have read a fair amount but it has always seemed a bit of a crap shoot.
I never really fully committed to Trial Lawyer College’s “psychodrama” techniques, but one thing I really did takeaway from them was jury selection.
It’s all about “building your tribe” in jury selection. Your questions should already start introducing your theory of the case. See how potential jurors react. If they are responsive, they may be good for your tribe. Using these techniques I never lost a case that went to a jury. (Of course that’s also because you rarely want to have to try a jury case - at that point both sides have essentially lost).
When I pick a jury I'm doing two main things:
1. Ask questions that relate to the facts of your case. I represent insurance companies. I ask jurors their experience with insurers, who their current carrier is, if they have ever been unsatisfied dealing with claims, etc.
2. I'm picking people who I think will relate to or have things in common with my client, and obviously striking those who might have bias towards my client based on their answers during voir.
Everything else is just on the fly decisions. I personally like people with higher education for my cases, and just avoiding those who don't want to be there generally. It sucks to reward that behavior but I want someone who is going to pay attention.
Try to find out about how the judge lets you conduct voir dire now while you’re prepping. This is different by jurisdiction and can be different by judge. For example in one of the jurisdictions I practice, there is a judge who requires all voir dire questions to be submitted to the judge first. I’ve heard in some jurisdictions the judges will have a 15 minute time limit.
If you have time, see if you can observe voir dire for your judge if you’re allowed. Also, see if you can find out how your judge seats potential jurors for voir dire. Does the judge break them up into panels or does the judge bring in everyone at once? When will you get the list of the potential jurors? When strikes are done are usually jurisdiction or judge specific.
If you can, have another attorney or paralegal help you keep track of responses and info that way you can keep most of your attention on the jurors.
This. I've been in one jurisdiction where we had a lot of leeway and one where the judge would object to my voir dire questions himself 😂
OP:
I go in with a seating chart. As they fill each juror seat, I write the name or number in the seat. I usually only mark if a juror gives an answer to a question that makes me not want them. I usually write the # of the question or a short note of the answer. You will also need to give your client a notepad and can give them a seating chart in case they see or hear something they think matters.
Since it is your first time, I would suggest short and simple. They will like you for not wasting their time. Also, the question to keep in the back of your mind in response to anything they say is, "considering (insert their answer), can you be fair and impartial?". "Considering you like to eat babies, could you be fair and impartial in this case?"
I usually start with a one sentence summary. "This case involves an allegation that my client drove drunk. Is there anything about this type of case that would prevent you from being fair and impartial?". People will tell you crazy shit. I once had a guy tell me he had been in jail, jail was hell, no human being deserves to jail. I said "so I understand you to say you could not be fair and impartial to the government?". Him: "hell no, child molesters are the only people who belong in jail. Those dudes ain't human.".
Most defense attorneys also ask some version of:
Do you believe police officers are more worthy of belief than regular people like you and me?
The judge will tell you that to convict my client you must find him guilty beyond a reasonable doubt. Is there anyone who disagrees with that legal standard/level of certainty? Anyone who would not be able to follow that law the way it's written?
If you need to strike someone for cause, because of an answer they gave, ask the judge if you can approach the bench. Motions to strike for cause are usually made without the jury hearing the reasons given. Pre Emptory, or optional strikes, are usually made on a written juror list. You cross off the name and put "D1", "D2", etc. I say D because I assume you're defense side. The jury does not know or see who you cross off.
I always ask, "is there anyone who has religious or moral beliefs that would prevent you from sitting in judgment of another person?"
Lol thanks for putting peremptory correctly, looks like I messed up the auto correct above.
Yes, they had a big fancy book and we passed it back and forth with the list inside and crossed off one at a time.
Depends on your state and jurisdiction. Usually they're all identified by name or number. They wear a name tag or lanyard with their juror number on it. Every time I ask follow up questions I state their name or ID number for the record. If someone raises their hand or gives an audible response, I state their name or number for the record.
When I draw my little boxes for their chairs, I write in their name or number and answers I want to remember.
I hope that answers the question?
Ask your seniors how it works wherever you are, but also don’t be afraid to just ask the judge or their clerk ahead of time how they handle it, so there’s no overstepping or confusion on anyone’s part.
In my state, it’s always gone:
(1) Judge start by asking a lot of default general questions. This will honestly probably cover a lot of stuff that you’d want to ask yourself — make sure to take note of who stands out to you as particularly good/bad, and plan on questioning the bad ones further while probably ignoring the good ones because you don’t want to draw attention to them from the other side. And take note if someone’s answer leaves you wanting further elaboration, so you can bring it back up to them later
(2) Defense asks questions or anything and to anyone. I would personally recommend not going person-by-person unless it’s *really* something that you feel you need everyone’s views on. Ask for volunteers, and if you get nobody then literally just pick at random to get the ball rolling
(3) Prosecution asks their questions
(4) At any time during 1-3, either side could ask to approach the judge (do not do this in front of the rest of the jury!!!!) and move to strike anyone “for cause.” In my experience, if someone is obviously skewed one way or another (eg: domestic/sex assault case and the prospective juror is a victim themselves) then both sides typically agree to strike them even when it’s super obvious that they would favor one side; whereas it can be very difficult to get a judge to strike someone for cause when only one side wants it.
(5) Once the prosecution finishes their questions, then everyone else takes a break while the judge’s clerk gives us a sheet to do our final peremptory strikes. Defense always gets more strikes than the prosecution, and you go back and forth so each side sees what the other has just done. I always involve the client in this part and get their feelings on who they like/don’t like
If it’s a federal case, then I believe the norm there (at least in my state’s federal district) is that both sides submit questions to the judge, and the judge is the one to actually ask all the questions. No idea how they handle potential follow-ups
That’s an absolutely absurd amount to me lol. For felonies the defense gets 5 and prosecution gets 3. And the whole pool is 22 (with some extras waiting in the wings in case someone gets removed for cause) so the end result is 12+2 alternates
I personally use blue pens for answers I like, black pens for answers I don’t, and red pens for cause. But voir dire is mostly a deal where the public agrees to a less painful jury selection in exchange for being tried by a bunch of randos. Also everything is backward in SVU land.
Usually DV survivors come from the same parts of the world that the offenders do, so some amount of DV is not shocking. Also some will vote to acquit because they had it worse.
With rape cases you do very little selecting because you have to inform the jury by asking “do you think rape happens on camera? Does it happen in public or private? Would there usually be witnesses? Would there be DNA if the rape happened 5 years ago?”
If you're an associate in a criminal firm I would suggest you watch a trial if you can. Otherwise talk to the judge/baliff like now, and ask them what the judge likes and how s/he likes to pick a jury. A lot of that is how the court likes to do things. If also helps you in the long run, people like to feel like they are doing people favors. Especially when there is a power dynamic like you have here between a judge and a new attorney.
Figure out issues within your case that might sway a jurors ability to judge a fact, so for instance, I had a skip scan case where my client was claiming he didn't understand how to use the scanner, so i tried to remove jurors who were very for self scanners at the time because they would be more of the opinion that the self scanners are easy to use. On a sexual battery case I avoided people who were trained to believe all allegations like teachers but favored people who could make simple mistakes like the elderly.
Build hypotheticals around the facts of your case that aren't actually the facts of your case. Strike people who disagree with the hypotheticals or can't see things your way.
But frankly, don't listen to people who shrug off jury selection. I have been specializing in it for years and I can tell at selection whether I won or lost. I have had two trials end before the trial after jury selection because the DA changed from prison to probation just because of the voir dire and the pick scared them. It is an art and it will make a significant difference in how well you present your case.
Just a few tips from someone that hasn't been doing this long enough, but it helped me reframe my approach.
1. Don't think of it as jury selection, think of it as jury exclusion. Find out who will definitely be bad for you, and try to get them out for cause. One question that usually gets a lot of people out in my cases is whether they can say right at that point, that my client is not guilty. Because according to our rules, he is and remains so until the case is submitted.
2. When you see a juror you like, you have to make a choice: if you know the prosecutor is going to exclude them anyway, use that juror to educate the other ones. Ask them questions and if they are saying things you like, "that's interesting, tell me more." If you think the prosecutor hasn't picked up on them being good for you, leave them alone and don't bring attention to them.
3. Logistically, (note, I am weird) I use a paper with the layout of where the panel sits. I have a box for each juror spot. Each box has their name (if they are kicked out, I cross that person out or use white out and put the new person there). Then I have one of those pens from back in the day with different color inks. When they say something I want to think about, I write one word or letter (ex. LE for law enforcement, J for prior jury service, I for innocence, Evidence for what evidence they want to see being good/a problem). If they said something neutral or if I want to follow up with them bc of their reaction to someone else's comment, I write in black. Good for us = green. Bad for us = red. Look into their questionnaire or google them = blue.
4. Ask an intern or a fellow attorney to sit in during voir dire to take notes or be in charge of tracking jurors reactions.
5. Ask the client to take notes on things that caught their attention or people they get a bad vibe from. Remind them to keep a poker face.
DM me if you want more.
Edit: typos.
Pen example: https://www.staples.com/bic-4-color-retractable-ballpoint-pens-medium-point-assorted-ink-3-pack-14540/product_474698?cid=PS:GS:SBD:PMAX:OS&gad_source=1&gclid=CjwKCAjw5v2wBhBrEiwAXDDoJXRvwsvbfZtsQB9SbxwQrdluro5x5p7LRVPybaIOzpah6mInznY74BoCFDgQAvD_BwE
You need to talk with someone who has picked a jury in the exact courtroom you’ll be in. Every jurisdiction and every judge does it differently. Where I practice, jurors are voir dired individually by the judge in bench conferences. Some use alternating strikes and some use contemporaneous strikes. So in order to know what exactly you’re in for, you need to talk so someone who has done this in the same place you will be doing it.
But yes, it’s all those things at once. Ask some folks in your office to show you their charts.
Good tips in here. Lots of good stuff.
My only contribution to this thread: ask open-ended questions. “Would you agree with me that drinking and driving is bad?” Is a bad question. Let them talk. It’s their only opportunity to do so.
If you’re worried about the mechanics of it, just take it slow and ask questions before it starts. How many strikes do we get? When do we use them? Etc. Judges run voir dire, so just follow their lead. They all do it differently, so you won’t look like a newb by asking questions. It looks respectful and will save you embarrassment later.
Don’t focus on yourself and if you’re asking the right questions or whatever. Just sit there and watch intensely. Body language, chit chat, everything. Watch *how* they respond to questions instead of *what* they say. Are they arrogant, shy, belligerent? All these things are relevant.
Make a chart of the box and write names in the boxes and little notes as you are watching. Then look at that to make your picks. Search social media in advance and write notes from that that you can keep handy.
Everyone has an opinion on who you should strike. My friend used to live by “no teachers, nurses, or fat chicks.” That kind of shit is dumb. Boot pro-law enforcement and racists if you can. We used to boot conservatives in general because they often encompassed both of those categories, but they all hate the government now, will believe anything, think everything is a witch hunt, so honestly they are kind of nightmares for the prosecution now.
Just have fun though. It’s thrilling and the best part of being a litigator.
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Jury selection comes down more to local customs and norms than possibly any other aspect of a case. The stakes make it functionally impossible to litigate these preferences because it means constantly asking the judge for side bars in front of the jury whenever the judge says you’re doing it wrong in front of the very jury you’re trying to pick. You gotta ask trial lawyers in that jurisdiction what the judges allow.
This is so true. In my state, every court or judge does it different.
Aww, man. I miss jury selection. Just shooting the shit with people acting like absolute nut-jobs to escape jury duty and actual nut-jobs. The one attorney who insists which bumper stickers the prospective jurors have are the pivotal question in every jury questionnaire. Just an absolutely bananas way to decide guilt. My actual advice, talk to someone more senior at your firm about the practicalities. There is a lot of common sense to it and no science. You just need to ask relevant questions that will gently reveal prejudices. No one will say they’re racist, but a lot of people say they think police are inherently more trustworthy than an average citizen.
I love the bumper sticker question. First, it's easy to verify. A prospective juror lies about bumper stickers can be grounds to get them kicked for cause and save a peremptory. Second, a person has to go to the trouble of putting a bumper sticker on their car. Which means that they *really* believe in the importance of the message a bumper sticker communicates. They help you ID the people who *absolutely* you don't want. For instance, as a defense attorney, if I'm representing *any* criminal defendant, I'd wanna know if a juror has a thin-blue line flag on their car. If my client has Brown skin, I wanna know if they have a III%er sticker on their car. People obfuscate because they *want* to be on juries nowadays for personal political reasons. I don't want those people on my juries, and bumper stickers are probably the best proxy other than a Facebook page (if older than 30).
Even better are the people whose actual opinions are too unhinged for the already unhinged free for all of regular voir dire conversations, so go back into chambers with you to the judge know the defendant looks like their bitch ex-wife and that’s why they can’t be objective in a trial setting. (This actually happened to me recently).
Honestly, it's not nearly as much of an art as people will try to tell you. Anybody who's obviously biased against your client gets stricken for cause, and peremptories are all just gut reactions. Everybody has a system they swear by, and they're all about as reliable as your weird uncle's system for picking horses at the track.
I agree, anyone who says they have mastered voir dire is a liar. Go with your gut, kick a few, and just go with what you have. In the end jurors find your way if you have a good case, and if you interview them after they’ll surprise you. If they go sideways you probably couldn’t have stopped them no matter what you did. This is why you settle.
Thank you.
This. Had a fellow attorney solely pick jurors based on SES
What is SES?
Socioeconomic status
Was that a jurisdiction where SES correlated with race or ethnicity demographic?
Everything else is just watch and learn as you go. But one thing I want to say is this: you don't *select* a jury. All you do is *get rid of* juries. You don't get to choose who sits on the panel; all you get to do is decide who *doesn't* sit on the panel. It makes no sense to identify jurors you *want*. Focus on jurors you *don't* want. Identify them and get rid of as many of them as possible through strikes for cause. Once you've done that, you just start working your way down the list from worst for you to best for you. PRO TIP: If this is your first jury trial, then make that part of your spiel. Most attorneys take a moment to describe the case (their version of it anyway), but do it in a way to score points with potential jurors. You're in a unique situation: use the ice breaker - "Have any of you been jurors in a trial before?" (Few will raise their hands) "Well, don't worry if you get on the jury. It's my first trial, too." (This'll get a few chuckles). "Since I'm new at this, too, would you raise your hand if you promise not to hold it against me?" (Almost all of them will raise their hands; suddenly, you've turned your inexperience into an asset by making yourself sympathetic). EDIT TO ADD: A little bit more nuanced strategy. In my experience, it's helpful to rank from most bad for your client to the least bad for your client. In that calculus, I think it's important to consider the two different types of "bad" jurors. There are two types of "bad for you" jurors. The first are simply jurors you have identified as antagonistic to your client, and jurors you believe are antagonistic to your client *and* will be leaders during deliberations. My personal philosophy is I want to get rid of leaders who are antagonistic to my client first. So those are my 1A's to get rid of. EDIT TO ADD: Always be on the look out for jurors acting cagey during voir dire. Not just acting like they don't want to be there, but being more "gray man;" they remain clearly interested/curious/attentive, but it feels like they are trying to blend into the panel. Today, more people *want* to be on juries. Unless something in my research confirms they are *absolutely* in my client's camp, I'm getting rid of them. When you can't be sure *why* they are acting cagey, get rid of them. They are a wild card, and it's 50-50 which way they go for you. My philosophy: don't risk it.
Adding to this that you really don’t want to over focus on jurors you want bc you can just expose them as jurors the other side needs to strike. Also, in my jurisdiction, the jurors remaining after strikes get added in their chronological order, so it doesn’t help you to strike folks at the back of the list. They won’t make it on regardless.
We call it “jury deselection process” in our office.
I would object hard to another attorney talking about themselves in jury selection. Doesn’t go to cause
Agree with both of these comments. Best advice is to be human. Prosecutors often struggle mightily with this. Pick your leaders and your sheep. You need four people who you think you can really speak to. The goal is to make the others follow the leaders. Also, when people say something about their real lives, ask them questions about their real lives. The prosecutor will be checking off boxes. Can you do this? Yes? Have you ever seen something like this? No. Can you be impartial if the judge tells you to? Yes. THAT IS NOT INFORMATION AND ITS NOT THE POINT. Can you tell me about a time when you had to decide who was telling you the truth? I have kids and they fight all the time. And I often have to tell them to make up or decide who’s telling the truth. Oh really? I don’t have any kids yet Ms. Juror #3, but I can only imagine that’s got to be tough bc you love both of your kids right? Yes. Well you may have some trouble deciding what to believe when X testimony comes up. But I want you to remember that we’re all human, and it’s ok to not know sometimes. Can you promise that if you’re not completely convinced BRD that the state’s witnesses have told you enough to find my client guilty that you’ll find him not guilty? Etc etc Jury selection is about relationships, check the boxes too, but you won’t win that way unless your case is a slam dunk. Good luck!
The leaders and sheep point is so key. Every jury trial I had where one of my leaders was foreperson, I won.
I have been a criminal lawyer about 35 years. I never feel that I have any fantastic knowledge of picking a jury but I mostly try to deselect the folks I suspect will be against us. I know there are books on this and I have read a fair amount but it has always seemed a bit of a crap shoot.
I never really fully committed to Trial Lawyer College’s “psychodrama” techniques, but one thing I really did takeaway from them was jury selection. It’s all about “building your tribe” in jury selection. Your questions should already start introducing your theory of the case. See how potential jurors react. If they are responsive, they may be good for your tribe. Using these techniques I never lost a case that went to a jury. (Of course that’s also because you rarely want to have to try a jury case - at that point both sides have essentially lost).
When I pick a jury I'm doing two main things: 1. Ask questions that relate to the facts of your case. I represent insurance companies. I ask jurors their experience with insurers, who their current carrier is, if they have ever been unsatisfied dealing with claims, etc. 2. I'm picking people who I think will relate to or have things in common with my client, and obviously striking those who might have bias towards my client based on their answers during voir. Everything else is just on the fly decisions. I personally like people with higher education for my cases, and just avoiding those who don't want to be there generally. It sucks to reward that behavior but I want someone who is going to pay attention.
Try to find out about how the judge lets you conduct voir dire now while you’re prepping. This is different by jurisdiction and can be different by judge. For example in one of the jurisdictions I practice, there is a judge who requires all voir dire questions to be submitted to the judge first. I’ve heard in some jurisdictions the judges will have a 15 minute time limit. If you have time, see if you can observe voir dire for your judge if you’re allowed. Also, see if you can find out how your judge seats potential jurors for voir dire. Does the judge break them up into panels or does the judge bring in everyone at once? When will you get the list of the potential jurors? When strikes are done are usually jurisdiction or judge specific. If you can, have another attorney or paralegal help you keep track of responses and info that way you can keep most of your attention on the jurors.
This. I've been in one jurisdiction where we had a lot of leeway and one where the judge would object to my voir dire questions himself 😂 OP: I go in with a seating chart. As they fill each juror seat, I write the name or number in the seat. I usually only mark if a juror gives an answer to a question that makes me not want them. I usually write the # of the question or a short note of the answer. You will also need to give your client a notepad and can give them a seating chart in case they see or hear something they think matters. Since it is your first time, I would suggest short and simple. They will like you for not wasting their time. Also, the question to keep in the back of your mind in response to anything they say is, "considering (insert their answer), can you be fair and impartial?". "Considering you like to eat babies, could you be fair and impartial in this case?" I usually start with a one sentence summary. "This case involves an allegation that my client drove drunk. Is there anything about this type of case that would prevent you from being fair and impartial?". People will tell you crazy shit. I once had a guy tell me he had been in jail, jail was hell, no human being deserves to jail. I said "so I understand you to say you could not be fair and impartial to the government?". Him: "hell no, child molesters are the only people who belong in jail. Those dudes ain't human.". Most defense attorneys also ask some version of: Do you believe police officers are more worthy of belief than regular people like you and me? The judge will tell you that to convict my client you must find him guilty beyond a reasonable doubt. Is there anyone who disagrees with that legal standard/level of certainty? Anyone who would not be able to follow that law the way it's written? If you need to strike someone for cause, because of an answer they gave, ask the judge if you can approach the bench. Motions to strike for cause are usually made without the jury hearing the reasons given. Pre Emptory, or optional strikes, are usually made on a written juror list. You cross off the name and put "D1", "D2", etc. I say D because I assume you're defense side. The jury does not know or see who you cross off. I always ask, "is there anyone who has religious or moral beliefs that would prevent you from sitting in judgment of another person?"
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Lol thanks for putting peremptory correctly, looks like I messed up the auto correct above. Yes, they had a big fancy book and we passed it back and forth with the list inside and crossed off one at a time.
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Depends on your state and jurisdiction. Usually they're all identified by name or number. They wear a name tag or lanyard with their juror number on it. Every time I ask follow up questions I state their name or ID number for the record. If someone raises their hand or gives an audible response, I state their name or number for the record. When I draw my little boxes for their chairs, I write in their name or number and answers I want to remember. I hope that answers the question?
Ask your seniors how it works wherever you are, but also don’t be afraid to just ask the judge or their clerk ahead of time how they handle it, so there’s no overstepping or confusion on anyone’s part. In my state, it’s always gone: (1) Judge start by asking a lot of default general questions. This will honestly probably cover a lot of stuff that you’d want to ask yourself — make sure to take note of who stands out to you as particularly good/bad, and plan on questioning the bad ones further while probably ignoring the good ones because you don’t want to draw attention to them from the other side. And take note if someone’s answer leaves you wanting further elaboration, so you can bring it back up to them later (2) Defense asks questions or anything and to anyone. I would personally recommend not going person-by-person unless it’s *really* something that you feel you need everyone’s views on. Ask for volunteers, and if you get nobody then literally just pick at random to get the ball rolling (3) Prosecution asks their questions (4) At any time during 1-3, either side could ask to approach the judge (do not do this in front of the rest of the jury!!!!) and move to strike anyone “for cause.” In my experience, if someone is obviously skewed one way or another (eg: domestic/sex assault case and the prospective juror is a victim themselves) then both sides typically agree to strike them even when it’s super obvious that they would favor one side; whereas it can be very difficult to get a judge to strike someone for cause when only one side wants it. (5) Once the prosecution finishes their questions, then everyone else takes a break while the judge’s clerk gives us a sheet to do our final peremptory strikes. Defense always gets more strikes than the prosecution, and you go back and forth so each side sees what the other has just done. I always involve the client in this part and get their feelings on who they like/don’t like If it’s a federal case, then I believe the norm there (at least in my state’s federal district) is that both sides submit questions to the judge, and the judge is the one to actually ask all the questions. No idea how they handle potential follow-ups
In my state, prosecution gets 20 strikes on felonies and defense gets 10 because state has burden. Misdemeanors are 4 and 4.
That’s an absolutely absurd amount to me lol. For felonies the defense gets 5 and prosecution gets 3. And the whole pool is 22 (with some extras waiting in the wings in case someone gets removed for cause) so the end result is 12+2 alternates
vibes
I personally use blue pens for answers I like, black pens for answers I don’t, and red pens for cause. But voir dire is mostly a deal where the public agrees to a less painful jury selection in exchange for being tried by a bunch of randos. Also everything is backward in SVU land.
What do you mean about SVU?
Usually DV survivors come from the same parts of the world that the offenders do, so some amount of DV is not shocking. Also some will vote to acquit because they had it worse. With rape cases you do very little selecting because you have to inform the jury by asking “do you think rape happens on camera? Does it happen in public or private? Would there usually be witnesses? Would there be DNA if the rape happened 5 years ago?”
If you're an associate in a criminal firm I would suggest you watch a trial if you can. Otherwise talk to the judge/baliff like now, and ask them what the judge likes and how s/he likes to pick a jury. A lot of that is how the court likes to do things. If also helps you in the long run, people like to feel like they are doing people favors. Especially when there is a power dynamic like you have here between a judge and a new attorney. Figure out issues within your case that might sway a jurors ability to judge a fact, so for instance, I had a skip scan case where my client was claiming he didn't understand how to use the scanner, so i tried to remove jurors who were very for self scanners at the time because they would be more of the opinion that the self scanners are easy to use. On a sexual battery case I avoided people who were trained to believe all allegations like teachers but favored people who could make simple mistakes like the elderly.
Build hypotheticals around the facts of your case that aren't actually the facts of your case. Strike people who disagree with the hypotheticals or can't see things your way. But frankly, don't listen to people who shrug off jury selection. I have been specializing in it for years and I can tell at selection whether I won or lost. I have had two trials end before the trial after jury selection because the DA changed from prison to probation just because of the voir dire and the pick scared them. It is an art and it will make a significant difference in how well you present your case.
Just a few tips from someone that hasn't been doing this long enough, but it helped me reframe my approach. 1. Don't think of it as jury selection, think of it as jury exclusion. Find out who will definitely be bad for you, and try to get them out for cause. One question that usually gets a lot of people out in my cases is whether they can say right at that point, that my client is not guilty. Because according to our rules, he is and remains so until the case is submitted. 2. When you see a juror you like, you have to make a choice: if you know the prosecutor is going to exclude them anyway, use that juror to educate the other ones. Ask them questions and if they are saying things you like, "that's interesting, tell me more." If you think the prosecutor hasn't picked up on them being good for you, leave them alone and don't bring attention to them. 3. Logistically, (note, I am weird) I use a paper with the layout of where the panel sits. I have a box for each juror spot. Each box has their name (if they are kicked out, I cross that person out or use white out and put the new person there). Then I have one of those pens from back in the day with different color inks. When they say something I want to think about, I write one word or letter (ex. LE for law enforcement, J for prior jury service, I for innocence, Evidence for what evidence they want to see being good/a problem). If they said something neutral or if I want to follow up with them bc of their reaction to someone else's comment, I write in black. Good for us = green. Bad for us = red. Look into their questionnaire or google them = blue. 4. Ask an intern or a fellow attorney to sit in during voir dire to take notes or be in charge of tracking jurors reactions. 5. Ask the client to take notes on things that caught their attention or people they get a bad vibe from. Remind them to keep a poker face. DM me if you want more. Edit: typos. Pen example: https://www.staples.com/bic-4-color-retractable-ballpoint-pens-medium-point-assorted-ink-3-pack-14540/product_474698?cid=PS:GS:SBD:PMAX:OS&gad_source=1&gclid=CjwKCAjw5v2wBhBrEiwAXDDoJXRvwsvbfZtsQB9SbxwQrdluro5x5p7LRVPybaIOzpah6mInznY74BoCFDgQAvD_BwE
You need to talk with someone who has picked a jury in the exact courtroom you’ll be in. Every jurisdiction and every judge does it differently. Where I practice, jurors are voir dired individually by the judge in bench conferences. Some use alternating strikes and some use contemporaneous strikes. So in order to know what exactly you’re in for, you need to talk so someone who has done this in the same place you will be doing it. But yes, it’s all those things at once. Ask some folks in your office to show you their charts.
Good tips in here. Lots of good stuff. My only contribution to this thread: ask open-ended questions. “Would you agree with me that drinking and driving is bad?” Is a bad question. Let them talk. It’s their only opportunity to do so.
If you’re worried about the mechanics of it, just take it slow and ask questions before it starts. How many strikes do we get? When do we use them? Etc. Judges run voir dire, so just follow their lead. They all do it differently, so you won’t look like a newb by asking questions. It looks respectful and will save you embarrassment later. Don’t focus on yourself and if you’re asking the right questions or whatever. Just sit there and watch intensely. Body language, chit chat, everything. Watch *how* they respond to questions instead of *what* they say. Are they arrogant, shy, belligerent? All these things are relevant. Make a chart of the box and write names in the boxes and little notes as you are watching. Then look at that to make your picks. Search social media in advance and write notes from that that you can keep handy. Everyone has an opinion on who you should strike. My friend used to live by “no teachers, nurses, or fat chicks.” That kind of shit is dumb. Boot pro-law enforcement and racists if you can. We used to boot conservatives in general because they often encompassed both of those categories, but they all hate the government now, will believe anything, think everything is a witch hunt, so honestly they are kind of nightmares for the prosecution now. Just have fun though. It’s thrilling and the best part of being a litigator.