Trials

9 Tips For Picking The Right Jury

No matter how experienced you get at voir dire, it's always a crap shoot -- but these tips could help you out.

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(Photo by Fred Prouser-Pool/Getty Images)

The key to winning any case is picking the right jury.  Choose a majority of people who are ill-disposed to your client from the get-go, and you’ll likely lose.  No matter how strong your case, if you pick a bad panel, your client will not prevail.

The problem is voir dire is an art, not a science.  We bring to it our own personal prejudices, experiences, and finesse.  How well you read people, pick up cues, and know the right questions to ask the cipher in the group — the guy just sitting there blankly — will determine how good a jury you’ll get.

It’s one of the toughest things to learn because your personality could help or get in the way.  It’s a skill that develops with practice, and there are few hard-and-fast rules.  Each situation depends on the type of case — i.e., what your defense is — the flexibility of the judge who determines the amount of time you get to ask questions and the scope of those questions, and the skill of your opponent.  It varies from state to state and sometimes even from courtroom to courtroom.

In some states, only the judge questions the jury panel.  In others, there’s an extensive give and take between counsel and the venire.  Everything is on the record because peremptory strikes and “for-cause” challenges are healthy fodder for appeal.  Federal courts rob attorneys of this valuable opportunity to get to know jurors.  Only the judge asks the questions.  Even though a panel nods their heads in blanket assent to a federal judge’s questions, that doesn’t mean they’ve really understood the basic concepts he’s outlined like burden of proof or presumption of innocence. In state court, for example, I’m often amazed how readily jurors say they can accept the proposition that if a defendant does not testify, they cannot use that against him. Yet when I later ask, “Will you think the prosecution proved their case if my client doesn’t testify?” at least four people say yes.  We miss that opportunity to delve further in federal court.

Having last week picked a good jury in an against-all-odds case, there’s a few certain rules of thumb I recommend:

1)  Put your senses on high alert.  Watch the jurors carefully as they walk into the box.  Are they slouched or erect?  What are they carrying? How did they dress for court?  Are they reluctant to make eye contact with you or your client?  None of these are definite tells of who to keep, but it adds to your storehouse of information and may tip you one way or the other at the end of questioning.

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2)  Every voir dire is unique to the trial in front of you.  If you’ve got a child rape case, you’re going to be asking different questions than for a fraud case.  Personalize your voir dire according based on the charges and the individual defendant.

3) Get the bad stuff out up front. If  your client has a criminal record and you’re sure (only if you’re sure!) he’s going to testify, ask about that. “My client has a prior felony conviction for selling drugs.  Are you going to assume he did this crime, too?” Or, as in my recent case, the client did something wrong, but just not what he was indicted for, ask, “Can you hone in on just this charge, even if you know my client was, for example, carrying a gun, started the fight, possessed 10 bags of crack, and ran from the cops?”   If they give you a bad look, kick them off.

4) Try to be as natural as possible.  Speak conversational English, not legalese. A question like, “Can you accept the burden of proof as the judge described it?” is horrible compared to, “Look at my client, Carl.  Is he not guilty of this crime as he sits there now, or are you wavering?”

5) Don’t be sycophantic, but be interested.  Associating in too-friendly a manner with a juror will signal your opponent to kick him off.  If you want the prosecutor to kick him off, then maybe it’s a good tactic, but gushing about how “I also went to University of North Carolina.  How about those Tar Heels?” is just pandering.  I had one prosecutor ask if he could get a juror water, or if the panel wouldn’t like to get up and take a stretch.  The judge was furious.  “I run this court room, not you.”  At the same time, be interested in what they do.  Ask follow up questions, “Why did you chose that line of work?  How do you like it?”

6) Pick only happy people.  Grouchy people will either a) not give a damn, or b) want to convict.   Do not pick grouchy people.  Any one sitting there, arms folded, scowl on face, clearly annoyed to answer any question by the judge or you (or answering monosyllabically like it’s none of your business), is no one who’s going to take the charges seriously.  The sooner he gets out of there and back to his own life, the better.  This generally means a quick conviction.

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I look for people comfortable with themselves, who make easy eye contact, are quick to smile or laugh, and respond with nods of heads or raised hands.

7) Your client is a valuable ally in picking the right jury. People are looking at him and he’s getting vibes.  Someone who might have seemed okay to you, may have just given your client a side glance reading “you’re nothing,” or “you’re guilty.”  Your client will know.

8) Pay attention to the balance of personalities.  By this I mean, sometimes you’re stuck with a person who seems a non-entity, a go-with-the-flow juror who will side with the majority whichever way it swings.  Count that person out.  Of those left, think of the mixture of races, genders, and ages. Who’s likely to speak up; who’s likely to cause a problem.  You’re scouting for natural alliances and enmities.

I once did a voir dire where Helen Gurley-Brown (the former editor-in-chief of Cosmopolitan magazine) was a potential juror.  A male juror was so outspoken during voir dire that when Gurly-Brown was asked if she could be fair, said “not if that loud-mouth is on the panel.”  They both got kicked off.

Then there’s the Hail Mary pass, where the case is so dead, you’re actively looking for the kook juror who will cause the panel to hang.

Finally, don’t discount anyone because of what he does for a living.  I once seated a federal prosecutor in a state case who found the evidence so paltry, he acquitted.  Another time, contrary to conventional wisdom, I sat a working undercover cop.  She gave me a good answer to a voir dire question and I figured had dealt with prejudice herself.  (She was a large, black woman in dreds who didn’t take kindly to any B.S.  My client was  acquitted in a drug-sale case.)

9)  Bottom line, if you’re new at voir dire, try to relax.  Think of it as being a talk-show host, getting to know his guests.  Encourage the panel to engage individually with you and with each other.  Develop your instincts and watch the pros.

No matter how experienced you get at voir dire, it’s always a crap shoot.  But your odds at getting good at it only grow with experience, so hang in there.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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