Best Practices: Jury Selection" National Institute for Trial Advocacy ("NITA") Notes
This article was originally published in the National Institute for Trial Advocacy (NITA) newsletter, July 2007 edition.
Each month NITA Notes features a NITA faculty member who provides readers with tips to make their law practice a best practice. This month's featured scholars are Paul G. Crist and Richard G. Stuhan, both partners in Jones Day’s Cleveland office.
Trial by jury is guaranteed by the Constitution and is central to the American justice system. The challenge for counsel is to identify fair-minded and conscientious jurors, eliminating those with pre-existing biases. Jury selection is both an art and a science. Various tools can inform your decisions, but trial counsel’s experience and judgment trump proxies.
- Jury Research is a powerful tool if used wisely.
- Trial Consultants. If the stakes justify the expenditure, retain a good trial consultant. The most expensive consultant is not necessarily the best consultant.
- Research Protocol. Tools include (1) quantitative research (phone, internet, and mail intercept studies) to identify correlations between juror characteristics and verdict-orientation and to gauge public opinion in high-profile cases; (2) qualitative research (focus and deliberation groups) to test themes and witnesses; (3) mock trials to test themes and witnesses in context; and (4) non-conventional research formats. Choose the tool(s) that meet(s) your needs and budget.
- Juror Questionnaires. The use of written questionnaires is increasing, and courts typically approve them if the parties agree.
- Written questionnaires can (1) expedite jury selection (e.g., repetitive voir dire is avoided); (2) provide more in-depth information; (3) be less intrusive than responding in open court; and (4) avoid an entire panel being tainted by one juror's strong views and biases.
- Seek sufficient time to review and assimilate the responses before oral voir dire.
- Oral Voir Dire.
- Ask the judge what procedure s/he uses. Procedures vary substantially, even among judges in the same court. Does the court permit attorney voir dire? How are challenges for cause and peremptory strikes exercised? Does the court permit back-striking?
- Lawyer-conducted voir dire is typically your first chance to address the jury. Establish credibility. Jurors have names. Use them. Be fair. Ask open ended questions. Listen to the answers. Follow up where appropriate. Don't ignore anyone.
- Keep track of responses, particularly those relating to challenges for cause and to verdict-predictive issues. Use a chart divided into blocks, with post-its to record additional information (or to use with a replacement).
- After a problematic answer, don't ask, "Given your answer(s) to the previous question(s), can you be fair?" Virtually all jurors believe themselves capable of being fair. That is human nature. Rather, ask: "All of us have opinions and there's nothing wrong with that. If you were (plaintiff or defendant), would you want to have someone with your honestly-held views serving as a juror?"
- Distinguish leaders from followers. A juror with leadership potential is more promising (or, conversely, more dangerous) than a juror who lacks that potential.
- Selection Criteria.
- Jury selection is basically a de-selection process. Your principal objective is to eliminate jurors who cannot be fair to your client.
- Beware of stereotypes and conventional wisdom. Demographic characteristics are rarely reliable predictors of verdict-orientation. Jurors' experiences and attitudes are more reliable.
- Anticipate that, particularly in lengthy trials, hardship excuses can skew the jury in undesirable ways.
- For-Cause Challenges.
- Disqualifying bias is frequently defined by statute, and all jurisdictions have applicable caselaw. Where possible, secure admissions of bias from jurors in words that track the applicable standard.
- Statutory grounds for excuses or challenges for cause (e.g., a felony conviction, age 70+, or pre-school children) may allow you to exclude disquieting jurors who aren't demonstrably biased.
- Try to insulate "your" jurors from challenges for cause. Seek confirmation that they can decide the case on the evidence and the law. If juror(s) cannot be saved, consider using them as "witnesses" on themes important to your case.
- Peremptory Challenges.
- Know how many peremptory challenges you have and how they are exercised. Variations in procedures are virtually endless. Though peremptories are typically fixed by statute or rule, most courts have discretion to expand the number of peremptories and generally do so if the parties agree.
- Judges are frequently in a hurry to pick the jury after completion of voir dire. Seek the time to reflect before exercising peremptory challenges.
- Thank venire members who are excused. Be respectful and courteous—that is what good lawyers do, and the remaining jurors are your most important audience.
- The procedure for selecting alternates frequently differs from the procedure for selecting the main panel.
- Fed. R. Civ. P. 47 has abolished alternate jurors and expressly provides that all jurors remaining at the end of the trial shall deliberate. In state courts, judges will sometimes offer the parties the option of having all remaining jurors deliberate. Counsel should be prepared to answer this question.