I’ve tried dozens of jury trials as both a prosecutor and defense lawyer and have been to many trial schools and courses about how to pick a jury. In previous posts, I’ve written about the typical questioning that occurs between the lawyers and the prospective jurors. You’ve seen some of this on TV. Of course, some of it is true, but there are underlying reasons for jury selection that aren’t revealed on TV or in books.
When picking a jury, what are the smart lawyers really trying to do?
Of course, all lawyers say they want the most fair and unbiased jury possible. The judge repeatedly tells the jurors to be fair to both sides and in our justice system, that idea of fairness is probably the most basic, important aspect. If nothing else, we want our juries to be fair and not swayed by anything beyond the evidence presented to them in the trial.
But is this what the lawyers want?
No.
As a lawyer, I’m an advocate for my client and want a jury that will give my client the bast shake possible. If the lawyer is a prosecutor, this gets a little sticky since the prosecutor’s ethical duty is to seek justice. Which could mean he would want a fair jury. The defense lawyer’s ethical duty is to get his client off. Truth and justice play no part in what a defense lawyer is required to do for his client. As a defense lawyer, I want a jury that is as biased for my client as possible.
During the jury selection I will certainly ask the usual questions of prior experience, associations, possible racial bias, etc. But I spend little time on these questions. Why?
It’s been my experience that if a juror really wants to be on the jury, they can figure out what the lawyers want by the questions they ask. The juror simply frames their answers to make it look like they’re fair minded. So I’m not sure that the answers I get to the routine questions tell me a lot about the juror. I can try different questions in an effort to pry underneath the surface, but people can usually fake their way onto a jury, if they really want.
Instead, I use jury selection as a time to accomplish two important goals:
1. Humanize my client.
I’m defending someone accused of a horrible crime. Maybe it’s murder or sexual assault, or burglary of a home. By the fact the client has been charged and is in a trial, makes him look guilty. I want the jury to start to see the accused as a human being who may not be guilty. If I can develop sympathy for the accused, the jury may give him a break or view the evidence in a more favorable light toward the accused.
2. Sell the theory of the defense.
Good defense lawyers, know they don’t have to prove anything, but they must have a “theory of the defense.” Meaning, an alternative narrative to the one presented by the prosecution. Maybe it’s a complicated as blaming someone else for the crime. Maybe it’s as simple as saying the government can’t prove one of the elements of the crime so the accused must be found not guilty. When I meet the jurors for the first time, it’s an opportunity for me to introduce my “story” to them and try and sell them on my “theory” of the case. For instance, if the defense is self defense, I will question each juror about self defense and try to get them to remember a situation where they had to defend themselves–putting them in the same shoes as the defendant when he testifies later about his self defense.
