- Jim Ferraro
The Intricacies of Jury Selection
When we had finished with the Frye hearing for the Castillo-DuPont trial, it was time to select the jury for trial.
Having a good jury can make or break a case, especially a case like this.
What I look for in a prospective juror is fairly simple: I want people who are open-minded and fair. I don’t necessarily look for people with biases in our favor, although I will quickly exclude those with biases against us.
The problem with most people is that sometimes they don’t recognize they have a bias one way or the other. For instance, if your father worked as a scientist at a major pharmaceutical company, you may have trouble ruling against a pharmaceutical company despite seeing yourself as a very fair and reasonable person. Consciously or not, the fact that your dad was a scientist for such a company affects the lens through which you look at certain things.
In a case like this one, I didn’t want members of the jury who were inadvertently biased for or against the government, corporations, or certain types of people. Even though sympathy is not supposed to play a part in a trial, both sides tend to look for jurors who are capable of or already have some sympathy toward their cause. Over the years, a good lawyer learns to operate on strong gut instincts, and that’s always been my best approach when selecting a jury.
The first thing that happens during the jury selection process for a trial like ours is the court distributes a series of questions (usually in the form of a written questionnaire) to weed out people who truly cannot serve due to physical limitations, language barriers, or irresolvable family conflicts, among other legitimate reasons.
Then, the judge calls smaller groups of prospective jurors to the jury box for individual questioning by the attorneys (and often by the judge, too). This is called “voir dire,” which comes from an Old French term meaning “to speak the truth.” During voir dire, the attorneys scrutinize each prospective juror to try to determine whether he or she would be sympathetic to one side or the other.
That is one purpose of voir dire.
Another purpose of voir dire, and the one that serves the public interest in fair trials, is to determine whether a prospective juror harbors any biases that would prevent him or her from being impartial.
Both the criminal and civil law systems in the United States depend upon impartial juries to hear cases in order to ensure fair trials. A defendant in a criminal case has a constitutional right to a fair trial. After questioning prospective jurors, each side’s attorneys may challenge certain jurors using two types of challenges: a “for-cause” challenge and a “peremptory” challenge. Each attorney has an unlimited number of for-cause challenges, which are, as the term suggests, based on a specified reason or “cause” to challenge the prospective juror. Generally a prospective juror may be challenged for cause because of:
• exposure to pretrial publicity about the case
• a connection with a party, an attorney, the judge, or a witness in the case
• a religious prohibition against imposing a sentence or otherwise fulfilling his or her role
• a gender, race, or other bias.
When an attorney wants to challenge a juror for cause, she must state to the court the reason for that challenge. Even though the number of such challenges is unlimited, attorneys do not generally exercise very many (and frequently none at all) because of the difficulty of accusing a prospective juror of bias or incompetency to serve.
The remaining jurors may resent the attorney for making a for-cause challenge, and the judge may even refuse to excuse the juror (if he or she is not persuaded that cause exists), which might harm the attorney’s client more than just keeping the person on the panel in the first place.
In my next post, I will further explore the jury-selection procedure, in general and as it applied to this particular case.
I’d love to hear from you. Have you ever been chosen for a jury? What did the process seem like to you? Were you being judged on your lack of bias, or did you sense something else at play? Thank you for sharing.