Friday, April 25, 2008

Jury Deselection

by Donna Pendergast

Have you ever been a part of the jury selection process or sat through a jury selection and wondered what was really going on behind the scenes? Why does the prosecutor ask the questions that she/he asks? What are the papers that the attorneys are looking at? Why do the attorneys kick off the persons that they do? What are the attorneys looking for and why?

The jury selection process is targeted towards selecting jurors who can decide the case without bias against any of the involved parties. But that doesn't mean that both sides won't be trying to select jurors who are likely to be sympathetic to their respective side or spin on the case.

Jury selection (also called
jury deselection by many) is a science. Both sides analyze and interpret clues to determine who is likely to be sympathetic to their case and who is likely to be sympathetic to the opponent's case. As much as an attorney picks who serves on their jury, they are also picking who doesn't serve as well.

The jury selection/deselection process begins for the attorneys before prospective jurors ever walk into the courtroom. The background questionnaires that most jurors fill out when their summons comes in the mail are summarized in a list provided by the court to attorneys. Accordingly, the attorneys know a little bit about potential jurors before the questioning ever begins. Basic information like occupation of the prospective juror and spouse, prior contacts with law enforcement, and affiliation with agencies conducting the investigation are all things that the attorneys are looking at early on in an effort to get a feel for each prospective juror.

In an especially high-profile trial where there is a "hot button" issue or where there has been a great deal of pretrial publicity, potential jurors may also be given a more extensive questionnaire that delves more deeply into potential biases and prejudices specific to the case. In a
murder case that I tried where a man was murdered after revealing a surprise gay crush on another man during the taping of an episode of "The Jenny Jones Show," the in-depth questionnaire probed deeply into the potential jurors' attitudes about homosexuality. More recently in trials that I have prosecuted, questions about extramarital affairs, the alleged promiscuity of a victim, and pretrial media coverage were all put into the more in-depth questionnaires that the prospective jurors were required to fill out well in advance of the trial.


The scrutiny begins from the moment that a jury pool walks into the courtroom. Attorneys look to things like dress, demeanor, even the reading material brought into the court by the prospective jurors to assess overt as well as subtle clues that may give insight as to the personality of the juror. The attorneys try to interpret these clues to determine who may be favorable to their side and who may not be favorable.

The purpose of questioning jurors is to get the jurors talking and to elicit as much information as possible. Although the exact procedures for questioning jurors will vary by jurisdiction, the goal remains the same. The attorneys on both sides will ask questions of the jurors in a manner calculated to gain as much information as possible to allow for deselection of unfavorable jurors and retention of favorable jurors. Through the questioning process the attorneys are attempting to understand who the jurors are as persons and what is important to them as individuals in an effort to evaluate how a potential juror may react to the facts of the case at hand.

Through questioning of the potential jurors both sides also attempt to educate the members of the jury panel as to the facts and the law pertaining to the case in a favorable way. The attorneys do this by explaining the law while sizing up the prospective jurors' comfort levels as they respond to questions pertaining to the attorney's explanations of the law and hypothetical questions. The prosecution will seek to diffuse deficiencies in their case by this process of educating jurors on the law while the defense will be attempting to highlight the problems or deficiencies in the prosecution's case.

It is also imperative during questioning that an attorney gain credibility with the jury. As much as an attorney is picking a jury, the potential jurors are picking an attorney as well. It is important that the attorneys present themselves in a manner that instills confidence in the prospective jurors so that the jurors will trust them. It is the hope of the attorneys that as the trial progresses the jurors will look to them as someone who is trying to bring out the truth. When questioning potential jurors the attorneys must also be careful about how they elicit sensitive or embarrassing information in the presence of the whole jury panel to avoid alienating potential favorable jurors.

As jury selection/deselection progresses the attorneys are also trying to assess how potential jurors may interact together. The dynamics of who will be a leader and who will be a follower as well as how different personalities may interact together are all important considerations for the attorneys to evaluate as they strategize on how to use their preemptive challenges tactically.

Preemptory challenges allow an attorney to reject a prospective juror without giving a reason as long as the rejection is not based on race, gender, religion, or sexual orientation. The number of preemptive challenges granted to each side is the same but varies in accordance with the severity of the charges. The court rules determine how many charges are allotted to each side. In more serious criminal charges such as homicide, each side gets more preemptive challenges than they do for trials on less severe charges.

Both sides in a criminal trial are granted an unlimited number of challenges for cause. A challenge for cause is exercised by an attorney when they can articulate a reason why a juror cannot be fair and impartial in a specific case.

It has long been understood that jurors come into a courtroom with preconceived opinions formed as a result of their life experiences. Jury selection/deselection seeks to ensure that both sides have an opportunity to screen a jury pool and ask questions that will uncover juror bias.

So the next time that you report for jury duty, report with the knowledge that you are indeed being watched and scrutinized for clues. If you get
kicked off of a jury don't take it personally, there may be reasons known to the attorneys that make you an unsuitable juror for one case but may make you the perfect juror for the case in the courtroom next door.

Statements made in this post are my own and not intended to reflect the views, opinions, or position of the Michigan Attorney General or the Michigan Department of Attorney General.


Wendy Roberts said...

Fascinating! Although our jury selection is slightly different here in Canada,the hierarchy and scrutiny is much the same.

Anonymous said...

Very interesting! But i have to ask this then, What happened to O.J.'s jury?????? lol.

Donna Weaver said...

Great post, Donna!

I've only been called for jury duty once and found it to be a facinating experience. I was chosen to be jury forman in a civil case for award of damages. Personally, I don't understand why anyone would want to shirk jury duty. I'd be thrilled to sit on a Federal Grand Jury and experience that phase of our criminal justice system. I'm enthralled by the entire jurisprudence process.

Donna Pendergast said...

To think I feared that this would be a boring post. When you do it for a living it just comes naturally. To see it through an outsiders eyes it gives me new perspective.

Rae said...

I've only been called for jury duty once, and I called to have myself excused because I had a newborn daughter at home.

When I said "I have newborn at home", the lady clerk said that was fine, and then she paused, and said, "You mean a human newborn, right?"

It caught me off guard, but I said yes, and then I asked her why she had asked that. She said, "Oh, believe me, you'd be surprised. I've gotten the excuse of 'I can't serve because I have newborn puppies/kittens/ducks/whatever at home.'"

I had never thought about how creative people might get to get out of jury duty. :-)

Soobs said...

Just once, I'd like to be called for jury duty. I realize I probably won't ever get picked, I'm way too opinionated (although, in some cases, I think I can be fair) but I still can't believe that all my friends have been called and I NEVER have. It's not fair. :-)