How to Use Jury Selection Questions to Defend Criminal Charges

This video explains how to use jury selection questions to identify biased jurors during the jury selection process when defending criminal charges. Visit https://www.gustitislaw.com for more information about jury selection questions and tips and the best criminal defense lawyers in Bryan-College Station, TX.

In this video, criminal lawyer Stephen Gustitis describes how to use crafted jury selection questions to help identify jurors who may be biased against your theory of defense in a criminal case. Encouraging jurors to reveal their true beliefs during the jury selection process is one of the principal jury selection tips in this video. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including how to use jury selection questions to identify biased jurors.

The Jury Expert

I am not a consumer of jury consultant services. However, for the well-to-do client, who has money to burn, a jury consultant might be an expense worth incurring on a big case. If you cannot afford the high-priced services of a warm-bodied consultant, then maybe reading a good journal on the subject might serve your interests, as well.

The Jury Expert is a publication of the American Society of Trial Consultants edited by Dr. Rita R. Handrich. Dr. Handrich's goal is to translate social sciences research findings into practical and relevant tools for the trial lawyer. To that end, the journal features articles by academics on their research areas. The journal then gets reactions to those articles by experienced trial consultants who translate the theory into practice. Trial consultant responses to the articles focus on how the research can be used in litigation advocacy.

In addition to articles by academics, The Jury Expert also features practice-oriented articles by trial consultants on a wide array of litigation topics. The journal publishes six times a year and subscriptions are free. Their current issue features articles on cross-examination of narcissistic witnesses; juror reactions to successful women; varying attitudes of liberals and conservatives toward punishment; conceptual persuasion; the relationship between juror damages awards and generation; and more.

Jury Selection Complete

Another jury selected (or deselected, if you will) and empaneled. I recall a few months back Scott Greenfield posted about the "voodoo" nature of jury selection and I engaged him in spirited discussion. Scott opined that, any way you slice it, jury selection was a crap-shoot and guess work, at best. I disagreed with Scott suggesting it's possible to familiarized yourself enough with the jurors to help make intelligible peremptory strikes, especially with jurors on either extreme. The focus then becomes the jurors in the middle and what to do with them, strike or keep 'em.

After the strikes were made and the final list of twelve was being compiled I wondered why the State struck certain jurors and I struck others. Sure there was the occasional double strike. But obviously both sides of this dispute identified different jurors that we liked and didn't like. Jurors I liked often got struck by the State. I'm sure the reciprocal was true, as well. So anecdotally, it didn't seem jury selection was necessarily the crap-shoot we make it out to be.

Anyway, those are my thoughts for the day. Beyond this, one might ask if I've got a good jury? Well, I can only answer that after the verdict comes in. It's like my final argument - it was only a good one if it worked.

Finally, I appreciated an off-line note from Mark Bennett who suggested we not name our clients in our posts, lest their names become indelibly linked with some heinous allegation which we later beat. I agreed with that advice and edited my previous post, for all the good it will do. But the point was well taken.

Jury Selection Pro

An attorney in California offers a product for criminal defense lawyers to help them choose juries more successfully. The San Diego Business Journal tells the story here:

The product, called Jury Selection Pro, consists of preprinted cards with questions and potential responses; grids to help organize notes; references to relevant case law that can be cited as a basis for challenges; and specific legal language that can be useful in an appeal.

Most jury selection products on the market are treatises on jury psychology, which offer little use for the trial practitioner, he said.

“After discussions with other lawyers and my own experience, I came to realize what questions got to the heart of the matter and what answers are easier to challenge,” he said. “This is a practical use and methodology tool.”

Lawyer, Shaun Khojayan, tells more about his product here on video. If "Jury Selection Pro" was simply a tool to organize lawyer notes and thoughts during the stressful and complicated jury selection process, I'd be all for it. But it purports to be more - too much more.

I have not seen the product myself, but Khojayan's video seems to over-simplify the jury selection process and package it like a ham sandwich. I don't buy pre-packaged sandwiches so I won't be dropping $150.00 on Jury Selection Pro. However, it you've got some money to burn it might be interesting to see what Khojayan's got to offer.

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.

Recipe for a Hung Jury

Anne Reed writes here about a jury foreman who felt so bad about convicting the defendant she agreed to pay her fine. Anne then adds her thoughts about empowering jurors to hold to their vote in the jury room.

Empowering jurors is key to success in trial work. The real art of empowering jurors probably developed in death penalty defense work where jurors where trained to hold to their "life" vote at punishment, resulting in a hung jury. A capital jury hung on punishment would then result in an automatic life sentence. Anne suggests letting jurors know "how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in." She suggests "helping them rehearse in their minds how they'll do it, if they need to." But there is much more to empowering jurors to hold on.

Certainly, individual jurors must be taught during voir dire that their vote is important. Their vote, whatever it may be, can be based upon any fact or factors important to them. That the verdict of the jury is not one verdict but 12 individual verdicts, which are based upon individual judgment and reflection.

However, another key component of training jurors to stand firm is to commit other jurors - the jurors in the majority - to respect the vote of someone else. And not only respect the vote of a holdout, but to teach stronger jurors to actually protect the vote of someone who has an idea different from theirs. Roughly, the voir dire go something like this:

Lawyer: Mr. Potential Holdout, you of course, believe the verdict of the jury is not one verdict, but twelve individual verdicts. [Yes, I do.]

Lawyer: Based on the jury instructions given by the judge, the law will demand each juror not violate their individual judgment and conscience just to reach a verdict. Do you believe your vote is important and deserving respect from other jurors, even if you are only one of twelve? [Yes, of course.]

Lawyer: Thank you. Now, Ms. Strong Majority Juror. You certainly believe each member of the jury deserves respect? [Yes, of course I do.]

Lawyer: You certainly believe their vote, even if different from yours, deserves respect and even protection from other jurors who might want to bully the holdout into a verdict? [Yes, absolutely.]

Lawyer: Then, can I count on you to protect the vote of a fellow juror even if you do not agree with it? [Yes sir, you can.]

Getting twelve people to openly committed to these ideas is a recipe for a hung jury. Although the lawyer still needs some facts to hang their hat on, the idea of empowering jurors to stand firm is a great strategy in the appropriate case. Regretfully for Joyce Buffaloe, the foreman of her jury had not been empowered, and other jurors not conditioned, to respect and protect the vote of a hold-out.

Real Life "CSI" Effects

I ran across a great article, here, in the News Virginian about the adverse effect shows like CSI (Crime Scene Investigation) have upon the real-life criminal justice system. Writing for the paper, Rob Seal states:

As crime shows focused on cutting-edge forensic investigative techniques have spread throughout the prime-time television landscape, prosecutors and defense lawyers have started to take note and respond.

During jury selection in high-profile criminal trials, it’s now commonplace for lawyers to ask potential jurors whether they watch a lot of TV police shows. The fear is that forensic crime-show connoisseurs selected for a jury could bring an unrealistic set of expectations to a real-life trial.

"It’s even got a name. They call it the ‘CSI effect,’" said Charlottesville defense lawyer Rhonda Quagliana.

I agree that TV shows have an effect upon potential jury pools. However, I believe the prosecutors have more to fear from "crime-show connoisseurs" than do the informed Texas criminal defense attorney.

I regularly hear prosecutors ask potential jurors whether they watch crime shows like CSI. But I also regularly hear able defense lawyers ask the jury, "where's the DNA?" And many times it works! Yes, it is sometimes used as a ploy to divert a jury's attention. But on other occasions it's a reasonable and reliable component of the "things not done" defense.

I don't mind if jurors reporting for duty come with an unrealistic set of expectations regarding forensic technology. It is easier to explain away DNA evidence from the defense side, than to explain to a demanding jury why the police did not test for the substance in the first place. Consequently, the majority of times the "CSI effect" is an advantage for the defender.

Another Week in the Saddle

I'm not eating right, sleeping right, or acting right this week. I must be in another jury trial. In fact, I am defending my client in state district court against the the government's allegation he knowingly possessed a firearm after having been convicted of a felony.

Jury selection was yesterday and was very challenging. The difficulty was finding a group of jurors who could give my client a fair trial already knowing he was a convicted felon. (I called them my Twelve Special Jurors) It only took one courageous member of the panel admitting their bias before a rash of folks said they would use the prior felony as an inference of guilt if they were not sure the state met their burden of proof beyond a reasonable doubt. We were successful in striking each one for cause.

The jury is composed of 10 women and 2 men. My Twelve Special Jurors. We begin the evidence this morning when I expect the state to call around three witnesses to prove their case-in-chief. When I'm feeling more like a normal human being again, I'll let you know how things turned out.

Reciprocity

Reed and Bennett talk about juror secrets here and here. Anne presented the problem - the jurors have secrets and we need to know them. Mark presented the answer - we must first reveal our secret before the jurors will reveal theirs. Mark was describing reciprocity. In other words, a person responds to what is given to them. Sad for sad. Fear for fear. Slow for slow. Secret for secret.

Reciprocity is a powerful tool for the criminal defense lawyer which helps us connect with other human beings. The power in revealing ourselves to another is the affect it has upon the listener. During jury selection, when the trial lawyer reveals herself to a potential juror, she is connecting with another human being while developing rapport and trust. When a juror trusts us they will reveal things to us, even in a crowded room where other people are listening.

When there is no trust between lawyer and juror there is a psychological barrier separating the two. It is us versus them. We break down the barrier when we expose our own vulnerability. Once the juror realizes were are really one of them, they are better equipped to reveal their own vulnerability, i.e., their secrets.

What Are Pictures Worth?

Anne Reed, at Deliberations, wrote about pictures and their affect upon perceived credibility. She commented about a recent study:

"The mere presence of a picture of a brain, in an article about cognitive processes, makes us more likely to believe what we're reading -- even though most of us have no ability to understand the picture."

Her article was fascinating. The study showed a technical article about the brain, that included photographs, was perceived to be more credible and better written. She made this recommendation to lawyers:

"At one level, the message for lawyers here is clear: use pictures, and not just any pictures. Pictures may be most powerful when they represent what you're talking about as directly and concretely as possible."

I'd been toying with this same idea for some time. At a recent legal seminar a speaker showed us how he started using pictures during jury selection to help train the jury to understand legal concepts and others issues involved in his case. During my last jury trial I experimented with the photograph above, depicting a mentally ill patient, to help get the jury thinking the way I was thinking. It got them talking, at least.

This is such an interesting topic, I hope we hear more about it.