To pick or not to pick: learning the unlearnable

While lawyers may debate the effectiveness of jury selection, none will doubt the importance of it. The problem is, no one knows how to do it well. Some may think they do, but really, they’re just getting lucky. For the task is an incomprehensible one: to get 40-60 complete strangers to open up to you about their personal feelings and beliefs, to somehow get a sense of whether they’re in your favor or against all without mentioning the specific facts of the case at hand. As Mark Bennett says in his lecture on jury selection (more on that in a second), what we really want to do, as lawyers, is to take each juror aside and say “Psst, here are the facts. For me or against me?” and obviously we can’t. So we have to dance a dance in which we ask general questions in order to boil this stranger down to some stereotypes and make a best guess. It’s a pretty hopeless practice, made worse in jurisdictions where judges are the only ones asking questions or where there is no individual voir dire.

[To be sure, as currently practiced, jury selection is easier for prosecutors. They're not interested in learning about the person or getting them to open up; they merely want to reinforce the strong desire in people to follow the lead of authority and affirm the bias that most jurors have toward conviction. But, it can be argued, that practice is divergent from the prosecutor's true charge: which is to seek justice, not obtain a conviction. Sure, you can pick a jury by stating a general proposition of law and then asking if the juror can follow the court's instruction, but there's nothing functionally different between that and picking the first 12 jurors that walk in the door, something that I've suggested to prosecutors over the years, but for some reason they never take me seriously.]

Jury selection is not something that’s taught in law schools and most lawyer training focuses on the sexier aspects of the practice: the cross-examination of the complainant, or the “gotcha!” moment with the cop. That’s because jury selection is really more about psychology than about jurisprudence. It’s less about the questions you ask than how you ask those questions. If you haven’t read Bennett’s 16 (or 17) Simple Rules For Better Jury Selection before, now would be a good time to do so. They’re not a panacea, but a fabulous starting point for understanding how to better pick juries. Of them all, I’d say Rules 2 (The Blind Date Rule), 4 (90/10), 5 (don’t talk like a lawyer) and 8 (“how do you feel about that?”) are of particular importance. Of course, as I’ve just spent a paragraph above complaining about how jury selection isn’t taught anywhere, Rule 1 is also important: do it and watch others doing it.

Speaking of watching, here’s your homework for this week: set aside an hour (63 minutes to be more precise) and click on the link in the first paragraph to Mark’s video lecture. Watch it. Re-watch it if you must (but you can skip over the first 5-7 minutes or so, since it’s Texas specific). Peruse the posts he’s written on jury selection. Go the The Jury Expert and sign up for their newsletter. Then read the 16 (or 17) Rules and think about the questions you currently ask in jury selection and the questions you should be asking. Try to implement questions that unearth authoritarian jurors, because they are usually fatal to the defense. Then go out and do it.

In perusing Mark’s posts on jury selection, there are a few that caught my imagination. The first is his criticism of the “one-witness” question asked by prosecutors and its variant “will you require scientific [or some other kind of] evidence?”

The question is, as Mark notes, improper grounds for a challenge for cause, because it misrepresents the role of the juror. The question is essentially asking jurors if they would not convict unless they saw a particular type of evidence (or a certain number of witnesses) and then conveniently neglecting to tell them that that particular piece of evidence that the State did not present could form the basis for reasonable doubt depending on the facts of the case. As he states, it’s inelegant. Consider this example: the allegation is of rape, the defense is that it never happened. There is no DNA evidence. If a juror says they’d need to see some DNA evidence before they can convict someone of rape, should that person be qualified to serve as a juror? Why or why not?

But the far more intriguing question, to me at least, is the one he poses in the video I linked to above and the subject of this post from way back in 2008: is it okay to excuse a juror who states that they have a religious conviction against sitting in judgment of another person?

Almost every trial sees one of these types during jury selection: a juror who says that he/she cannot sit in judgment of another person. Lawyers and judges then give each other a secret signal and the juror is excused.

But is doing so legal? First, the job of a juror isn’t to judge someone, but rather to decide the facts of the case and to determine whether a violation of law has occurred. A juror isn’t required to sentence someone or to condemn someone (although the former may not be a bad idea and the latter may apply to death penalty cases). So is it really accurate to phrase the question as “judging another”?

Second, is it a violation of equal protection? Article First, Section 20 of the Connecticut Constitution states:

SEC. 20. No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.

The United States Supreme Court has said that “along with voting, jury service affords ordinary citizens their most significant opportunity to participate in the democratic process”. Further:

the right to serve on a jury invests ordinary citizens with a sense of empowerment derived from “‘a conscious duty of participation in the machinery of justice.’” Powers v. Ohio, supra, 1368, quoting Balzac v. Porto Rico, 258 U.S. 298, 310 (1922). It is not only a duty but “‘a privilege of citizenship.’” State v. Tillman, supra, 498 n.5, quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 224 (1946).

State v. Jones. I haven’t been able to find any cases where the removal of a juror was challenged on these grounds. At least in CT, the prohibition is listed in the same section as that of race, raising the specter of Batson-type challenges (see, generally, State v. Colon, which deals with A1S20 challenges in the capital context, which the Court rejects on Witherspoon-Witt grounds). It’s certainly worth thinking about.




2 thoughts on “To pick or not to pick: learning the unlearnable

  1. Jeff Gamso

    When the basis is religious belief, there’s also an argument that an exclusion for cause violates the Religious Test Clause of Article VI.

    “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”


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