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Saturday, January 8, 2011

View from the Bench: Jury Selection and Voir Dire According to Habas, Part Two

A Counter-Intuitive Art
Part 2


Time is the enemy in any jury selection. It is not unusual for trial courts to limit lawyers to as little as 20 minutes per side for jury selection. (I can remember one trial where I had 10). Wishful thinking is not reality. Regardless of all of the recent articles and studies that discuss implicit bias and the like, there is simply not enough time for a trial lawyer to take hours to develop information sufficient to allow intelligent challenges for cause. While some people will use their energy to change the system in allowing additional time for jury selection, we advocacy teachers must be realists. Teaching students how to make the most of very little time given to them by the court will make them better advocates in the reality of today’s courtrooms. They can always use these skills in the event others are successful in obtaining additional time.

Even if a trial lawyer has a lot of time to conduct jury selection, using a lot of time with the jury panel does not necessarily translate into effective advocacy. Remember the back story we discussed in the first section of this blog? Today’s jurors have a lot on their plates: jobs, family pressures and a whole host of other things that are taking their time and attention. The trial lawyers may have made everything else disappear off their calendars, but our volunteer squadron of jurors have no such luxury. Sit in on any jury selection for a lengthy civil trial, say one involving medical malpractice, and just watch the faces of the jury panel when the judge tells them that they may be sitting as jurors for 5 or 6 weeks (in some courts, this is a fairly short trial). Then watch those same jurors as the judge explains that in order to fairly select the jury, the court will give each side 2 full days to conduct jury selection. They are not happy campers.


Efficiency in jury selection is an excellent skill. Why is this? Because the entire purpose of jury selection is to de-select the jurors, and to do so efficiently, understanding the juror’s “back story”. A long-time friend of mine, Ted Shih, has always told me that selecting a jury is liking playing, “Battleship” (some of us codgers remember that game). You try to seek out the enemy and destroy them, without identifying who your friends are. In order to teach efficient jury selection, therefore, we must teach case analysis. The purpose of these series of blogs is not on teaching case analysis – instead, that skill is for another day and another blog. Instead, we must teach a certain type of case analysis.

Over the years, many professors (and some practicing trial lawyers) have taught the use of stereotypes in selecting juries. I don’t mean the kind of racial and ethnic stereotypes utilized by Clarence Darrow such as,

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.” (See, Clarence Darrow, “How to Pick A Jury” (1936) which can be found at http://www.law.umkc.edu/faculty/projects/ftrials/DAR_JURY.HTM.

This may be entertaining, but hardly helpful. I know very few people who make decisions in life based solely upon their ethnic background, faith or even their gender. Yet lawyers persist in using various stereotypes in selecting juries. For example, I have taught many lawyers this skill, and when I ask them what kind of juror attitude they are searching for, they may say, “I am looking for younger women who are professionals.” They rarely see this as a stereotype, but that is exactly what it is.

Students must be able to specifically identify the belief of the juror that will not be receptive to their case. How do you know when you find an enemy unless you know who your enemy is apt to be? This is not a general or vague statement. Take, for example, a case where my defendant killed another person with a handgun, and claims it was in self-defense. It would not help me to generally identify a certain kind of juror (such as, I want jurors who are comfortable with guns). Instead, I must formulate a specific statement of the attitude of that unknown juror (such as, I do not want a juror who has experienced violence in their family by use of a handgun that was not related to self-defense). This statement must couple an actual experience that a juror may have had, along with identification of the specific evidence in the case that it will attach to.

Why is it so important to identify the type of experience that a juror has, as opposed to just asking their opinions? If a person believes a certain way because of something that actually happened to them, no amount of convincing and cajoling will likely change their attitude. On the other hand, if the juror believes something because of what they read, they are more likely to allow themselves to be educated on that issue, and perhaps to change their belief. There is another reason to ask about experiences, as opposed to beliefs. A juror will provide you with many signals about their attitudes as they tell an actual story about something that happened to them. Are they angry when they tell the story? Afraid? Tearful? Do they tend to tell the story in a way that makes the person who held the gun a villain? Do they understand that tragedies can happen even without malice? All of these issues will be important to you. On the other hand, if you simply ask them what they believe, they may attempt to formulate their response so that they do not seem biased, or even so they don’t appear to be uneducated. No juror wants a room full of people to see them as stupid! Thus, you will get the universal juror response: “It depends on the evidence.” This means absolutely nothing, and will not get you any information, but instead will get you a very closed juror.

Let me put this in a different way. Your students must be able to identify precisely how they might lose their case in order to identify the juror attitude that they are seeking out. If I know that there are issues with my client’s use of a handgun (for example, he had no permit for it, or there had been drinking) a person who has themselves suffered from violence from use of a handgun may try to find some way to blame the person who holds the gun. That makes them more closed to my evidence than say another juror who has never had that experience. Even a juror who may be generally afraid of guns, or who believes in gun control, is more acceptable to me than the person who suffered an actual harm in their life and now believes that guns are evil.

It matters not what kind of case you have. If you have a case involving a dependency and neglect situation with use of corporal punishment, find your jurors who were spanked as children, and now who will never use spanking on their own children. They formed an attitude based upon their real-life experience that will not help you if you are representing the parent. If you have a case involving sale of widgets, find jurors who have paid good money for something and then received defective merchandise in return. That real-life experience will tell you whether they believe that, “buyer beware” or the opposite.

Thus, the most difficult part of our advocacy teaching of jury selection is to challenge our students to articulate for us who their enemy will be in this case. We owe them the duty to enforce this principle, and not to let them get away with the same old jury selection issues. It may be that you end up not finding a juror with a dangerous attitude on your panel. If that is the case, at least you know you have done what you can to find your enemies.

--Christina Habas

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