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I, The Jury, Part III: More on Voir Dire

We have a (brief) Trump legal item today, so let's have another set of reader comments on jury service, starting with some insightful thoughts from two lawyer-readers:

T.M.M. in Odessa, MO, writes: You asked for comments about the experience of folks who have served on juries. I thought it might also be useful to hear from a lawyer about their experience of what jurors are seeing.

The first thing to understand is that what happens in a trial is always an interplay between the judge and the lawyers. Some judges give the attorneys a lot of room to do what they want and let the attorneys dig their own hole. Other judges run a very tight ship and tolerate zero misbehavior from the attorneys. How a judge operates will have a very big impact on the jury experience.

For the most part, potential jurors do not know what case they are being called for jury service on. The court has several potential cases going that week and jurors are randomly assigned to a case when they arrive. There may be a general questionnaire that jurors complete when they arrive but normally there is no case-specific questionnaire that they will complete after they are assigned to a trial. High-publicity cases (death penalty cases and things like the current charges against prisoner in the dock DJT, Sr.) sometimes have "special" panels outside the normal selection process. With a special panel, the potential jurors are being called for that specific case. Sometimes, they will be sent a case-specific questionnaire in advance. If not, they will have a case-specific questionnaire when they arrive.

Once the questionnaire is completed, the next step will be "voir dire." Different attorneys translate voir dire differently. I tend to translate it as "to say what you have seen." During voir dire, the panel of potential jurors will be asked about their experiences and their view on issues. In many state courts, voir dire is conducted primarily by the attorneys. Many federal judges, however, take the lead in questioning. They may allow the attorneys to ask limited follow-up questions, and, even if the judge does the questioning, the parties get to suggest the questions that should be asked. Often the questioning can get very personal. For example, in a child sex or rape case, the parties will want to know if any potential juror has experience with sexual assault because that experience will have a definite impact on how that person will evaluate the case. In a case like the one against DJT, it is less likely that you will have questions of that type as most of the jurors will not have any experience with security clearances and classified documents. Besides who is conducting the questioning, there is also the issue of how the questioning process occurs. Some courts have the full panel assembled and the questions are asked to the group. Others do the questioning individually or in small groups. In a case like this one, it is highly unlikely that the court will do "full group" voir dire. Instead, at the very least, the court will break the panel into small groups to minimize the risk that one or two "rogue" potential jurors will give a response that taints the entire group.

Either at the end of voir dire, or as voir dire is progressing if done individually or in small groups, the attorneys make challenges. There are two types of challenges. The first is challenges for cause. A challenge for cause basically requires the attorney making the challenge to convince the judge that the juror is ineligible to serve—either because they fail to meet the statutory requirements for jury service or because for some reason the juror will not follow the trial court's instructions. There are no limits on challenges for cause as it is improper to have an unqualified or "biased" juror on the jury. In addition to challenges for cause, there are peremptory challenges. These are a limited number of challenges given to each side. Each side uses these challenges to remove jurors whom they feel "lean" toward the other side but who have not said enough for the trial judge to agree to remove the juror from the panel on a challenge for cause. For the most part, challenges for cause and peremptory challenges take place outside the hearing of the panel. As attorneys sometimes tell the potential jurors, voir dire and the challenge process picks a jury by process of elimination. It is not that each side gets their six favorite jurors. It's that the two sides get the twelve jurors that both sides can live with after removing the jurors that one side can't live with.

Once the trial starts, the jury will hear three types of evidence: (1) live testimony from witnesses, (2) deposition testimony; and (3) exhibits (e.g., documents, photographs, physical items like a gun or clothing). Deposition testimony is more common in civil cases than in criminal cases but sometimes the parties will agree to use a videotaped deposition instead of live testimony. Regardless of the type of testimony, there will often be objections from one side that the other side is trying to introduce improper evidence. And here is where the judge plays a large role in the jury experience. Some judges will allow lengthy "bench conferences" (where the two sides talk out the objection at the bench outside the hearing of the jury) while the jury is sitting in the jury box twiddling their thumbs. Other judges rule quickly and will highly discourage requests to approach the bench for routine objections. The best judges use recesses and conferences at the end of the day to work out the major issues, so that the jury's time is not wasted. The worst judges spend as much time during the day dealing with the attorneys as taking evidence. Things have changed with exhibits since my early days in practice. When I was a young attorney, exhibits were "published" to the jury by passing them to the jury and each juror would read the document and then pass it to the next juror. Today, most exhibits are published to the jury by projecting it to a screen (or displaying it on a tv) while the witness is going through the key part of the document.

The general trial process that the jury will experience after they are chosen is: (1) opening statements (in which the attorneys lay out what they expect the evidence will be to give the jury a context to understand the pieces of evidence as they come in) with the prosecution making its opening statement followed by the opening statement(s) of the defendant(s), (2) the government presents its evidence, (3) the defense presents its evidence, (4) rebuttal evidence, (5) closing arguments (government followed by defense with the government getting the last word in a rebuttal argument) and (6) the instructions from the court. In the federal system, some of the circuits (I do not know about the Eleventh, where Florida is) have "model" instructions which are suggested instructions which a court can use. Even if there are model instructions, it is ultimately up to the court (after taking suggestions from the parties) to decide what instructions to give. The only true requirements are that the court must tell the jury the burden of proof (beyond a reasonable doubt) and what "elements" it must find to be true before they can return a guilty verdict.

Once they get in the jury room, the jury is pretty much on its own for deciding how deliberations will proceed. The jury can send questions to the court. The easy question is asking to see certain exhibits. If the exhibit is "in evidence," the parties will usually agree that the jury can have it. But sometimes, an exhibit might be mentioned during the trial but not actually introduced into evidence. In that case, the jury will be told that it can't get the item. Similarly, it is rare for the parties and the court to agree (ultimately it is the judge's call) to answer questions about the instructions. The instructions (however poorly written, and some model instructions are indeed poorly written) are the instructions and are to be read by the jury in their "ordinary sense" with the jury having the responsibility for figuring out what they think the instructions say. On, hopefully, rare occasions, there might be a typo in the instructions (or a key phrase omitted), and the court might resolve that issue. But otherwise, the court will generally send back a response about the jury needing to refer back to the instructions to answer their question.

Once the jury reaches a verdict, it is not unusual for the losing side to ask for a poll of the jury. In criminal cases, a verdict has to be unanimous, and polling the jury gives a reluctant juror one last chance to say that they are not comfortable with the verdict (in which case the trial court can either declare a mistrial or resume deliberations).

How jurors experience a trial depends a lot on the trial judge. A good trial judge tries to minimize the hardship on the jurors. She will try to resolve as many issues as she can outside of normal business hours, take reasonable breaks during the testimony, encourage the parties to eliminate unnecessary witnesses, and try to use as much of the day as possible actually hearing evidence. In short, she will do her best to get the case to the jury as quickly as possible and minimize the time when the jury is sitting in the box or in the jury room while nothing is happening. A bad judge does none of these things. I once had a trial in which recesses were routinely 15 to 20 minutes longer than what the judge had announced, by the fourth recess, the jury laughed when the judge said there would be a 10-minute recess. Needless to say that judge quickly developed a reputation for wasting the jury's time.

A.R. in Los Angeles, CA, writes: I'll relay two perspectives—one as a juror and one as a lawyer during jury selection. First, it should really be called jury de-selection because that's what the attorneys are doing. You're hoping you can root out not only those jurors who should be excused for cause but also those that you can discover will hinder your case. The actual selection has already been done when the jury pool walks in.

When I'm called for jury duty, as an attorney, I'm usually one of the first panelists excused, but in one criminal case—a particularly gruesome murder-arson case—neither side excused me. I was shocked to find myself still sitting in the jury box when both lawyers said "I accept the panel as currently constituted." And it was a really rewarding experience—I've never understood why everyone wants to get out of jury duty, as I highly recommend it. The jurors I had the privilege of serving with all took their jobs very seriously, listened carefully to the evidence and deliberated thoughtfully. It was difficult and somber work, and we were all affected by our ultimate decision to find the defendant guilty, even though we were confident in the verdict we reached. I will say, though, that I understand why attorneys are kicked off—I had to deflect lots of questions from my fellow jurors who seemed to want to rely on my expertise. I had to remind them that, as jurors, we were all experts in this particular case and only the evidence and the law, as the judge gave it to us, mattered. In deliberations, I made sure to speak last so as not to overly influence their opinions. I was careful, but another attorney in my position could use that to their advantage to sway the outcome.

In conducting voir dire for my own cases, I have two rules for my peremptory challenges: (1) no jerks on my jury, and (2) no anti-government jurors (No. 2 is often a subset of No. 1.). When you need a unanimous jury, the last thing you want is a juror who only wants to disrupt the process or disagrees just to disagree—we all know the type. And these are usually easy to spot—just get them talking, as they're full of grievances and have unshakeable opinions about everything. So, it's not a matter of identifying Trump supporters, it's a matter of excusing those jurors who will never reach a consensus about anything—those types just happen to often be Trump supporters. What's interesting about some Trump supporters, though, is that they long for strong leadership and are often very strict rule-followers, so it's a mistake to dismiss them out of hand. For No. 2, as a government lawyer, I obviously don't want jurors who are hostile to me just because I work for "the man." Those are easy to spot also with questions like, "Juror No. 4, do you think there are too many rules about what you can and can't do?" Or "What is your opinion of mask mandates?" Again, just get folks talking and then ask if anyone else agrees with what Juror No. 4 just said, etc. In my most recent case, one juror said to me, "I'm looking for the liar. One of you is lying to me." He was absolutely right. I kept him—I knew who the liar was, and it wasn't me or my client.

R.H. in Santa Ana, CA, writes: Back in the day, Kentucky Court of Appeals Judge Michael O. McDonald was in the jury pool for a case. Each attorney thought the other attorney would surely strike him peremptorily, so neither did.

They tried the case and the jury went out.

It took five minutes for the jury to elect him as foreman, five minutes for him to explain why the prosecution (or plaintiff) had not met his burden of proof, and five minutes for them to vote for the defendant.

This anecdote is told to all law students in the Commonwealth at some point.

Years later I was summonsed for jury duty. Both of the opposing attorneys were classmates of mine. Both of them struck me, using their peremptory challenges. (I don't blame them one bit!)

J.G. in Santa Monica, CA, writes: I recently served 3.5 months on a murder trial in L.A. County. There were actually two juries in the same courtroom at the same time. One for a boyfriend/girlfriend duo charged with murder and our jury which deliberated on a murder charge for a defendant who was the stepdaughter of the deceased. The deceased was a 72-year-old man murdered in his own house by the boyfriend/girlfriend duo, who, along with the stepdaughter, transported the body (in the deceased's own car!) to Joshua Tree and attempted to burn it.

I started my experience as the 8th and final alternate juror on the stepdaughter's case. She was charged with aiding and abetting the murder, which in California carries the same weight and punishment as being charged with murder. Though it was clear the defendant did not take part in the physical murder of the deceased, she did bring the duo, friends of hers, to the residence where they stayed a couple of days, renting out a room Airbnb-style from the deceased before killing him.

While the case involved drug use, gang affiliations, the alleged murder of over a hundred trans prostitutes, a Perkins operation, autism, credit card fraud, and the dubious actions by the deceased man's own wife, who slipped out of the house at the time of the murder, one of the things I thought was interesting for your purposes was the jury deliberation.

The duo's jury received the case after our jury, but they came back within hours with two guilty verdicts. When my jury received the case, I had become the lone alternate juror, which meant I spent the first week of deliberations in the courthouse's jury assembly room reading my book and (ha, ha). After the first couple of days of deliberations I was informed by a member of my jury whom I had befriended that our jury was essentially deadlocked. The raw numbers for the twelve person jury was 8 for conviction and 4 for not guilty and that one member was already discussing the possibility of a mistrial. I was stunned. My friend didn't tell me who this one person was (she wasn't supposed to discuss the case) but I had some idea who it might be. It turns out I was wrong.

By day five of the deliberations I was summoned to report for service due to a juror having a family emergency and needing to be recused. Finally, I would get my chance to weigh the evidence with the other jurors. Remember, this is 3.5 months into my jury service. I came into the deliberation as a definite "guilty" and to this day maintain that stance. It turns out the one major holdout on our jury was a New York City transplant who was also a lawyer. I knew him from before the trial, as his son and my daughter had been classmates a few years previous in elementary school. Because our case involved a good degree of circumstantial evidence, he was a "not guilty" essentially from the start and he refused to deliberate. The rest of the jurors hated him. After a couple more days of deliberations we informed the judge we were impossibly deadlocked and he declared a mistrial.

In the hallway outside the courtroom we were given the opportunity to talk to the defense counsel and the two DAs. The first thing I said to the lead DA was a suggestion that, going forward, when it comes to voir dire, lawyers should avoid putting anyone with a legal background on the jury. He told me that there were two modes of thought on this very matter. Sometimes it seems a good idea to have someone with a law background on the jury since you know they will be able to follow the logic of the case. Other times, their meticulous nature will make them hard to persuade with circumstantial evidence. Keep in mind that the people's case did present evidence our defendant had solicited her stepfather's murder a year prior to the actual crime, but that evidence was provided by a person with a criminal record.

In brief, voir dire is the often the most perilous part of a case. The DA went on to tell us a story about how he once had a juror who would not make eye contact. So during his closing remarks, he positioned himself right in front of this woman, between her and the DA's own PowerPoint presentation. Still, she refused to look at him. After the jury got the case, the DA heard back that there was one lone "not guilty" holdout. It was her. He just knew it. In the end, the jury came back with a guilty verdict. It turns out that not only was the non-eye-contact woman actually a guilty vote but that she had been elected foreperson of the jury and was responsible for changing the final holdout's mind. It goes to show, you just never know.

C.R. in St. Louis, MO, writes: I have served on a couple petit juries and also a grand jury for three months. You get many opportunities if you live in the city. In the grand jury, we heard a lot of cases and most were "true billed" or approving indictments. We did a good job of asking questions when things were a bit flimsy or when eye witnesses were suspect. In all, we heard a lot of terrible things—especially on the one day a week set aside for domestic violence and child abuse cases. It was overall a great experience, though.

On the petit (normal trial) juries, the attorneys generally tried to set up the thinking of the jurors and frame their case through their voir dire questions. One such case was where the prosecutor asked if jurors would be able to conclude that someone was "in control and possession" of something if it was in their bedroom with them but not on their person. That was critical later to whether the accused was selling heroin that was found in the bedroom he slept in at his grandmother's house. He had to be in control and possession of it in order to be found guilty of one of the charges. We found him guilty in part because, as the foreman, I walked through the motions of "Did he possess it by way of controlling the bedroom?" This was more convoluted than it seemed at first blush, when the defense tried to muddy the waters.

J.W.N. in Walnut Creek, CA, writes: I served on a jury in San Francisco. It was a civil trial where a landlord (plaintiff) was renting a separate dwelling on their property to the defendants. The landlord evicted the defendants under the premise that they would be moving family into the separate dwelling, but the defendants refused to leave as they suspected the landlord would put the property back on the rental market to reset the base rent amount as a workaround to San Francisco's tenant-friendly rent control laws. So, the landlord sued the tenants to force an eviction.

I was the second juror questioned out of the whole pool and was agreed on by both plaintiff and defense attorneys. They asked if I rented (I did) or owned my property, my line of work, etc. My part of the story is straightforward.

What surprised me was the judge's attitude during voir dire. Many people, seemingly wanting to get out of serving on the jury more than anything, explained that they were landlords and that they would be biased, but he wasn't having it. Sure, the defendants' attorney rejected some of them, but the judge made it very clear that he didn't want to hear about people's biases and to only focus on this particular case and the facts at hand.

The twelfth juror who was selected spoke broken English, and said as best he could that he couldn't understand what everyone was talking about. Shockingly to me, both sides agreed to him and he was the final juror.

We heard the case and deliberated our decision, and we were stuck at 8 in ruling for the plaintiff where 9 is needed. Turns out that the 12th juror finally understood what was going on during our discussions, said he was a landlord, and he (biasedly) joined the group for the plaintiff making it 9 votes. Evidently he didn't understand the judge's earlier instructions. Case closed.

We're trying to keep this to two entries per week, so it doesn't get to be too much. In the next one, likely to run on Friday, we'll take a look at the presentation of court cases from the jury's perspective. (Z)

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