Thursday, January 17, 2008

Take the First Twelve?

Last week Scott Greenfield looked askance at the jury selection process, characterizing it as little more than "voodoo." I'm no jury consultant, like Anne Reed. But I've picked a few juries in my time and I think Scott was too cynical about the process. If I may, let me trash his post.

Scott observed a mock jury selection process at the Cardozo Law School where practicing lawyers interviewed a group of twelve law students who played like jurors:
The voir dire was artful. Beautifully crafted and masterfully executed. The student/jurors were relatively cooperative. They were responsive and articulate.
After the selection process the lawyers and students provided input:
Each of the lawyers then listed on a piece of paper his three peremptory challenges and the three jurors he would most prefer to have on his jury, and why. The students then wrote down which side they leaned toward after voir dire and why. First the lawyers, then the students, told the room their thoughts.
About the exercise, Scott said:
The exercise in pedagogy was enlightening. Everyone involved was half right and half wrong. Everyone.

Decisions were made for speculative reasons or no reasons. Assumptions were made that were dead wrong.
First, since nothing was on the line - nobody's life - nobody's freedom, I'm dubious how authentic such a demonstration could be. Maybe the problem was how beautiful and masterful it was conducted. Maybe it was too slick, too contrived. In reality, the jury selection process is about being real, not being impressive. I've impressed plenty of juries who nailed my client with a guilty or bad punishment verdict.

Second, it would be telling to hear what the lawyers were looking for during this mock selection process. Should they be striving to identify jurors who will lean their way? Maybe. In reality, we want jurors to trust us and listen to our story. If we get them, great. If we get folks already leaning our way we're just lucky.

The class moderator:
[Told] the students how the demonstration showed the way one conducts voir dire, open ended questions, eliciting the potential jurors hidden biases, getting the sense of who favors or disfavors your side, and how one strives for an impartial, rather than a favorable, jury since the other guy is going to bump the ones you like, while you bump the ones he likes, and you end up with a jury in the middle.
Good lawyers know which jurors are going to end up in the middle. On most panels experienced defenders can identify the fringe jurors on either side. Those people get struck by one side or the other. Consequently, the voir dire ends up focusing on jurors in the middle - developing relationships - helping people learn to believe in us.

Scott said everyone was 50% right and wrong. Right and wrong about what, I wonder. If everyone was half right and half wrong, then we've got a pretty good jury to work with. Heck, the defense lawyer only needs one juror to carry the load. Only one to persevere in their favorable vote for the selection process to have been successful.

Scott said decisions were made for speculative reasons. Sometimes our intuition is wrong. But we can't discount it. Defense lawyers won't always be right, but I can look back on my 17+ years of picking juries and remember the jurors I intuitively thought I should strike - but didn't. I paid a price for it later, at verdict time. Scott also said some decisions were made for no reasons at all. Well, that's a lawyer problem, not a jury selection problem.

Finally, I'm not sure if Scott proposed we take the first twelve or do away the jury trial altogether. I don't know of a better alternative. He did not make any recommendations. Maybe it is simply a matter of working harder and smarter. Maybe a matter of understanding people better.

I certainly appreciated Scott's post and thoughts on the mock voir dire he observed. Is voir dire tricky? Of course. Is it voodoo? I wouldn't be as cynical as that.

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