In my last criminal jury trial, I thought quite a few things went right during voir dire (i.e. jury selection). One was towards the very end, when a gentleman ultimately selected as an alternate juror matter-of-factly stated, in response to being asked by me whether he would hold it against my client if he didn’t testify, “He has nothing to prove.” I had spent many words wrangling (though trying not to “argue”) with many prospective jurors on this point. Striking jurors for cause on this basis had started to get very old, and a little disheartening. This gentleman in the space of five words had succinctly said all I had tried to say on this issue over the previous couple hours, and all there was to say. Maybe I’ll try to begin my next voir dire with the gift this juror gave me and my client. You can bet I thanked him for it, with feeling: “Thank you, sir.” The fact that he remained an alternate throughout the trial and was therefore not allowed to participate in the jury’s brief deliberations was of little consequence.
The foreman was another thing that went right. I had read all the juror questionnaires before trial, noting things that common sense or prejudice might suggest were indicative of traits unfavorable to criminal defendants. One of the jurors seated during the first round of questioning had indicated on his questionnaire that he read the Limbaugh Report or Limbaugh Letter, and (if I remember correctly) that he was active in community affairs and politics. I generally viewed all of that as a distinct negative, but none of his answers during actual voir dire jumped out at me as particularly bad for the defense, and I thought some of his answers to the deputy prosecutor’s questions were tinged with a bit of impatience. (“Of course” was a phrase he seemed to frequently use in answering her questions.) I hurriedly conferred with my client before going up to the bench with the prosecutor to give the judge our peremptory challenges and challenges for cause (the judge allowed a liberal amount of time for voir dire, but not a lot of time for ruminating over who to strike), and we decided not to strike this juror (or more accurately, we didn’t decide to strike him). After we had given the judge our peremptory challenges and the judge had ruled on our challenges for cause, the prosecutor asked the judge whether this particular juror was still on the panel. Indeed he was. Presumably, the prosecutor was pleasantly surprised. Uh oh, I thought, second-guessing myself. But as you’ve probably guessed by now, this was the man selected as the foreman by the jury which acquitted my client after about a half an hour of deliberations. He must have done a good job.
A number of prospective jurors had indicated on their questionnaires that they would be uncomfortable serving as jurors or couldn’t serve as jurors because they didn’t believe it was right to judge another human being. Of course, these prospective jurors invariably were ultimately struck by the prosecution. But their brief presence and their eminently reasonable reservations gave me the opportunity to point out something pointed out by Gerry Spence in his latest book: the requirement that the prosecution prove its case beyond a reasonable doubt before the jury may convict exists not only to protect the defendant but to protect you (the juror) and your peace of mind. If you conscientiously do the job asked of you, you shouldn’t have to worry about tossing and turning in the middle of the night haunted by the possibility that you might have convicted an innocent man. Keep that in mind if you or other jurors find yourselves wondering during deliberations how sure you have to be to be “persuaded beyond a reasonable doubt.” Are you quite understandably disturbed by the fact that you will be kept in the dark about the consequences for the defendant if you find him guilty? Keep that in mind if you or other jurors find yourselves wondering during deliberations how sure you have to be to be “persuaded beyond a reasonable doubt.”
Another thing I thought went well during voir dire was a line of questions I asked riffing off the voiceover intro to Law & Order. You know: “In the criminal justice system, the people are represented by two separate yet equally important groups: the police, who investigate crime, and the district attorneys, who prosecute the offenders. These are their stories.” This struck me as fertile ground for exploration with the jury pool: How many of you think that in this trial, in this courtroom, you represent the People? The police are kind of on the same team as the prosecutors, so you’re going to keep that in mind when police officers testify at this trial, right? Anybody see anything a little off in the line “the district attorneys, who prosecute the offenders“? Anybody ever watch Perry Mason? Etc.