Ten Tips on Jury Selection When Defending a Criminal Case
I have often said that a criminal defense lawyer can lose a case if he makes an error during the trial even though he picked the right jury. However, he can NEVER win the case if he picked the wrong jury regardless of how brilliant he is during the rest of the case. Apparently I was right. http://tsongas.com/blog-posts/minds-jury-behavior/
Therefore, it is vitally important that your lawyer have experience and knowledge in how to pick the right jury for your case.
There are 10 things I am looking for or doing when I pick a jury in a criminal defense case in order to pick the best jury I can from the jury panel provided:
- Occupation. Does the juror work in an authoritarian type of job that makes him or her more likely to identify with the government. Examples: Military, police officers, government bureaucrats. In sex offense cases I try to keep teachers, social workers, and counselors, off of the jury because their professions train them to believe individuals claiming to be victims.
- Prior victim. Obviously whether the juror was ever the victim of a crime.
- Use of open ended questions. It is important to get the juror talking by using open ended questions instead of questions that can be answered by a simple yes or no. Example. (good question) Mr. Jones how do you feel about whether false allegations of rape are ever made? The “how do you feel” part of this question forces the jury to think and to talk. (Bad question) Mr. Jones do you believe false allegations of rape are ever made? The juror can give a simple yes or no and you really have not discovered much about his true opinion. The more you can get the juror to talk the more likely it is they will reveal their true opinions and bias.
- Watching body language. Witnesses sometimes lie and so do jurors (Gasp – no you don’t say!) If I get negative body language towards me or my client I strike that juror.
- Gut feeling. In my view picking a jury is more of an art form than a science. It takes years of experience and many trials to learn how to be good at picking a jury, and even them some lawyers just never figure it out.
- Be myself. A lawyer, myself included, must use his own personality as he speaks to a jury. It never works to try to be someone you are not. The jury will pick up on the phony presentation and the lawyer as well as his client will lose all credibility. Example: I like movies so I will use popular movies to illustrate a point I am trying to discuss with the jury. I do not and have not read classic literature so I never try to quote Shakespeare.
- Be brutally honest. If there is a weak spot in your case, admit it during jury selection and talk to the jury about their feelings. The jurors will eventually see the weak spot anyway and the honesty of the lawyer in presenting it up front will gain him and the defendant a lot of credibility when it is needed to sway the jury on issues or facts that are in contention.
- Inform the jury about the defense. It is very important to get your defense in front of the jury as soon as possible to start to chip away at the assumption that most people have that the defendant is guilty or he would not be on trial. Reasonable doubt must be planted as soon as possible. Example: (Question) Mr. Jones what are some motives that you can think of that a person might make a false allegation? (Answer by Juror) Anger. (Question) Yes. So if there is evidence that Mr. Smith’s partner Mr. Brown who reported this allegation of fraud to the police was angry at Mr. Smith over a love triangle could you consider that evidence in deciding whether the testimony by Mr. Brown was credible or whether he may be making a false allegation against Mr. Smith?
- My body language. From the moment the jury comes into the courtroom I want to appear calm, at ease, and in control. One can never fully achieve this goal, but as much as possible I want the jury to view that courtroom as my domain, not the judge’s, and certainly not the prosecutor’s. It’s my home, my territory, and I will defend it and my client to the death.
- Establish the Ethos of a not guilty verdict. I want to talk with the jury and establish with them that, while no one wants to see guilty people go free, releasing a wrongfully accused person is the highest moral duty. Therefore, a Not Guilty verdict is sometimes the right verdict.
So there it is. My ten tips on jury selection in a criminal case.