What is your goal in picking a jury? Do you enter the courtroom with any type of plan? In every trial I have conducted, I have made conscious decisions on who I wanted on my panel, and just as importantly, who I didn’t want on my panel. With a plan in place, we can craft our voir dire, cross our fingers, and hope for the best.
If your client has the resources, it would be wonderful to have access to a mock or test jury. But for most of us, we are forced to rely on experience and gut feeling to decide who should be on our panel.
In this article, I am not addressing the techniques used to ask questions in voir dire, but rather, I am trying to address the process you need to consider when selecting your panel. Who are you actually looking for?
In criminal defense, depending on the case, I am looking for a jury that might be open to my arguments. Or, I may have a case that is so bad for my client that my goal is to hang the jury and hope for the best in negotiating a plea pending a second trial.
When thinking about who may be open to consider my arguments, the question boils down to my defense: Is it technical? Is it legal? Is it a factual argument? When making my strikes, I frequently can guess the prosecutor’s strikes…and in the right order. But, I have had good luck in forcing them to not strike jurors I want.
Although your client believes they are entitled to a fair and impartial jury. But that really isn’t the case. Rather, our goal is to obtain the most biased jury in our client’s favor. If I am dealing with complex issues, I want educated jurors. I want them to understand the fine point of my defense. If the case is a slam dunk for the State, I am searching for the least educated, least experienced person that I can manipulate. That’s the science and the art.
But let’s go one step further.
As defense counsel, I am very unlikely able to convince 8 or 12 individuals that the State failed to meet its burden. But I don’t conduct my case and arguments towards the 8 or 12 members of the jury. The odds are normally not in my favor. Rather, I am targeting the foreperson of the jury.
In small groups, there are frequently two leaders. You have the elected leader. But, you also have the leader that the group members look up to. Think about any athletic team you were a part of. You have the coach appointed captain. But in most cases, you also have the real leader: it may be the quiet teammate who led by example or the teammate that you did not want to fail. In your workplace, you have the elected leader, your supervisor. But in many cases, you also have the employee in the department that is the real person who knows how to get things done and you go to before going to the supervisor.
If I can focus my arguments towards the leaders, the remaining jurors will follow: it is human nature. If you want a hung jury, pick a jury with the two leaders that are polar opposites: educated/uneducated; liberal/conservative; religious/atheist; wealthy/ not-wealthy. There are leaders in each of theses categories.
My favorite is having a the CEO in the suit v. a blue collar construction foreman. Each are leaders by their job and position. They won’t be afraid to confront each other and stick with their position. Consider that the dynamic will force a discussion in the jury room. You can’t ask for anything else.
For example, I had a fraud scheme/forgery case. The allegation originated with a forged, State issued certification that permitted her to be a principal. Using her position, she received checks for school programs. She received the checks, endorsed the checks and deposited the checks into a “school created bank account.” She created the account and was the sole designee on the account. The school was unaware of the extra account. The State’s case was literally a slam dunk. My only goal was to challenge
