March 2006

Demystifying Jury Selection

by Stephen Hayne

When I was arguing Seattle v. Allison before the Washington State Supreme Court, I offered up this scintillating comment: "With all due respect Justice Ireland, I'm afraid you just don't understand the issue."

Justice Ireland authored the majority opinion. My inability to communicate effectively with judges is one reason I prefer trial by jury.

"Trial by jury is essentially a child of freedom. Where the scepter of the tyrant rules, it has no home. The system was inaugurated in the effort to thwart the power of the despot. It is the greatest safeguard of liberty, and the greatest protector of its privileges."
— Samuel M. Wolfe (1911)

Sam knew what he was talking about. The best protection against a government on the rampage is the "safeguard of liberty" — the wall between the accused and his accusers — a fair and impartial jury. For all trial lawyers, the trick, of course, is finding those "fair and impartial" jurors, especially in the face of highly publicized acquittals of "obviously guilty" celebrities. Do such jurors even exist? If so, how do we find them?

If we were honest, few trial lawyers would claim much affection for voir dire. It is a very uncomfortable setting: a group of trapped strangers being asked personal questions about touchy subjects. I suspect most lawyers and jurors squirm inside, distrustful of each other's power. I must admit I don't like jury selection. Despite 30 years of trying to like it, I still don't. I've read books, articles, and treatises (often written by people who couldn't possibly have tried many cases); been to the best seminars; watched and imitated the great ones; even written articles and given speeches on how to do it, but I still don't like it. I've spent thousands of hair-pulling hours thinking about it and hundreds more anxious hours actually doing it.

I don't like it for one reason: I'm not very good at it. I am always perplexed when I hear other lawyers claim they love voir dire. Maybe because when the jurors file in, they always seem to exchange warm smiles with my opponent, followed by steely glances at me. At the start of all my trials, I feel like a racehorse fidgeting in the gate, still sorting through the juror information forms as the judge begins the general questioning. I scribble numbers as the courtroom becomes a kind of crazy auction: number nine gets one, number 20 gets one, number 14, number 11, number … uh oh, I've already forgotten the question. The judge rushes on, numbers zipping by too fast to register. At the end, I stare at my notes — meaningless drivel surrounded by dozens of numbers.

Prosecutors always seem to begin voir dire with a clever remark they learned at Prosecutors' School, sharing a hearty laugh with the jurors while showing how reasonable and friendly they are. My prosecutors rarely ask repetitious, boring, offensive, irrelevant, political, religious, legal, gratuitous, stupid, personal, or other objectionable questions. They use open-ended, relevant, probing, intelligent, informative, empathic, educational inquiries instead.

When their time is up and all eyes turn toward me, I feel like a trapped rat. Anxiety burns up and down my neck. I really, really wish the fire alarm would go off or, God forgive me, somebody would have a heart attack. Anything to forestall the pain of jury selection. Taking a deep breath, I begin.
 
"Good morning ladies and gentlemen, my name is Steve Hayne and I…"

"Objection!"

"Sustained. Ask a question."

"Er…, Mr. Johnson, I wonder how you feel about being called upon to sit in judgment of my client?" I ask open-endedly.

"Not much," he answers with a frown.

"Well, I wonder if you'd share with us your reaction to receiving your jury summons?"

"Huh?"

"Well, I understand how this seems sort of an invasion of privacy to have to answer these questions and all, but I wonder if you have had any experiences which came to mind when the judge explained what type of case this is?"

"Nope."

Giving up on this hopeless poltroon, I turn to the smiling juror in seat number five, wondering if she sympathizes with those unjustly accused.

"Good morning Ms. Jones. By the way, do you prefer Ms., Mrs., or Miss?"

"Doesn't matter."

"Well then Ms. Jones, I believe you indicated to the judge earlier that you have been the victim of a crime?"

"No."

"Oh, of course. I guess I must have gotten you mixed up with another juror, ha ha. Well then, have you ever sat as a juror before?"

"Yes, as I explained to the prosecutor a few minutes ago."

"Oh yes. Well, could you tell us something about your experience, I mean, has there been anything about this process that you, er, that you've found particularly interesting or surprising, or have found surprising or interesting, er, your experience I mean. As a juror that is. Heh, heh. Know what I mean?" I resist mopping my brow.

"No."

Shoes filling with sweat, I glance at the clock, hoping my time is almost up. Three minutes have elapsed. Damn! I respond to outright lies, single-syllable answers, and veiled hostility, all with a calm nod. I ask different jurors the same question, hoping for different answers. I don't get any. On and on it goes, until the judge finally announces "time's up!"

Okay, it's not that bad, but even after all these years jury selection is still my least favorite part of the trial. One reason may be that, in the many DUI cases I try, the evidence is so overwhelming it feels like I'm selling air conditioners to Alaskans. And I suspect it's hard for you, too, no matter the case. Maybe the following will make your task a little easier.

"I the jury box, every day the American way of life is given its rebirth. American juries are the custodians and guarantors of the democratic ideal."
— Justice Bernard Botein (1946)

The importance of not being earnest

One reason Gerry Spence is so astoundingly successful with juries is his ability to gain their trust. Few are blessed with his talent, but we can learn from his example. You have doubtless heard the advice to "be yourself" in front of a jury. No one is more "himself" than Gerry Spence. He is able to reveal his warts and scars, his apprehension and fear, his faith in the jury system, his concern for his client, his sincere belief in the jurors as fair judges of his client's fate. They trust him, in part, because he trusts them. He then transfers that trust to his client, by humanizing him, helping the jury to feel and hear and see him, to make him real. After all, it's a lot harder to condemn someone you know, like, and understand than a complete stranger called "the defendant." Gerry gains their trust by showing he's human, too, just like the jurors; that he's not just a lawyer, but a real person needing the juror's help in doing justice for his client.

The fact is, the jury won't listen to or care about you if they sense you can't be trusted. They don't have to think you're funny or clever or really smart, they don't have to think you're cute or handsome, or a good dresser. They don't even have to like you very much. But, if you want to have any hope of winning, they must trust you. And the only path to trust is through sincerity and honesty.

Of course, being "yourself" is sometimes a very hard thing to do. When you're holding onto a tiger's tail for dear life, feeling overwhelmed, outgunned, incompetent, fat, ugly, and stupid — "yourself" feels pretty pathetic. It's easy for Gerry Spence, I mean, he's Gerry Spence. It's a lot harder for the rest of us. But, revealing yourself and all your warts to jurors is just what you need to do to gain their trust.

Being yourself means talking about your case from your heart instead of your head, talking to the jurors like ordinary people, about ordinary, common feelings. Feeling anxious about the responsibility of defending your client? Worried that you might not be up to the task? Concerned that your working-stiff client won't sound as articulate and polished as the police officer? Thinking no one charged with child molesting can get a fair trial? Fearful the jury won't trust you because you're a defense lawyer? People understand these concerns, and appreciate your dealing with them honestly. The point is, don't stand there with a phony smile pretending you're feeling totally in control when you're just not. Trust the jurors with the truth, and they may trust you in return. That's being yourself.

 "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
— Thomas Jefferson (1788)

Some advice on trying cases

Let's start with the basics. We're all afraid of trying cases. If you're not, you should be. It is the hardest thing I have ever done. You can take some steps to make it a little easier, though. First, prepare, prepare, and prepare, then prepare some more. Know the facts and players of your case better than anyone else. It is essential to keeping your confidence when your case starts falling apart during trial (it will). Accept that things are going to go wrong and take unexpected turns. Don't even try to try the perfect case, you're not going to. All trials are morality plays, a process of separating the good guys from the bad, and it is often unclear who's ahead. It is a dynamic process, which requires that you be relaxed in the midst of the chaos, to listen and interpret, to understand the case from the jury's point of view. Let me say it again: Preparation is the foundation for success, period.

If you're unfamiliar with the courtroom, visit it a day or two before trial, preferably after hours. Sit at counsel table and in the jury and witness box. Practice your opening to imaginary jurors. Plan out how you're going to use your exhibits. Get a feel for the courtroom. Then, on the morning of trial, get to the courtroom before the prosecutor and stake out your preferred place at counsel table. No, there is no "prosecutor's chair" in a courtroom (unless the judge says so). I seat my client as close to the jury as possible, or at least where they can see him clearly. I want the jurors to see him as a real person from the moment they walk in the courtroom, not as the inanimate defendant.1

Before trial, you really do need to prepare a checklist of what you need to bring to court.2 Otherwise, you're sure to leave something you absolutely positively must have back at the office. For most trials, I also bring my own juror questionnaire to be filled out before voir dire begins.3 The clerk can then make copies for the judge and prosecutor before bringing the panel into the courtroom. Be sure to bring enough copies for the whole jury panel, and in district court, enough pens and clipboards. You also need to know your judge's particular preferences in jury selection, which can vary widely. Ask a lawyer who has recently tried a case before your judge how the judge handled voir dire, juror questionnaires, general questions, challenges, etc. If you're in a jurisdiction that assigns the judge on the day of trial, as soon as you get to the courtroom ask the clerk how the judge conducts voir dire.

After hearing motions in limine, the judge has the bailiff fetch the jury panel from the juror assembly room. The prospective jurors are sworn in and the judge asks general questions of the whole panel. If the judge always asks the same questions, ask for a copy of them from the clerk beforehand. It is always a good idea to prepare your own list of general questions for the panel as well, since many judges will ask your general questions if you have them in writing beforehand. Once the general questioning is concluded, questioning of individual jurors by the lawyers begins. Individual questioning by the lawyers must be allowed.4

Almost all Washington judges now use the struck method, wherein the lawyers take turns questioning the whole jury panel at once. Beware: The scope of allowable subjects and questions varies widely from judge to judge. Some just turn you loose; others are very restrictive. I have tried cases back-to-back in the same courthouse, where the first judge let me do whatever I wanted and the second almost found me in contempt for asking exactly the same questions.

Stay ahead of the process; be ready for voir dire before the clerk starts calling jurors into the box. Your client should know his or her role during jury selection as well. I always give my client a pen and pad for notes, and advise them not to distract me during voir dire. Set your table; have your juror questionnaires, jury selection form, legal pad, extra pen, and everything else you might need laid out and ready. I don't actually use all that stuff, but it makes me feel more comfortable knowing I won't have to search for it if I want it. I am always consumed with anxiety before the beginning of any trial and find taking a few deep breaths every once in awhile the most effective way of calming down.

Each side is allowed the same amount of time to question jurors, usually divided into two parts. The prosecutor goes first, and each attorney is usually allowed to use the time as he or she wishes. For example, if allowed 15 minutes each (typical in most district court trials), the prosecutor may elect to use 10 minutes, then yield to defense counsel, reserving the remaining five minutes for rebuttal questions, and vice versa.

Jurors may be removed in two ways: challenges for cause and peremptory challenges. A challenge for cause is a request that the judge remove a juror for actual or implied bias. The judge will grant the request only if the juror is found unqualified as a matter of law, that is, unable to put the bias aside and follow the court's instructions.5 Most judges will take great pains to avoid challenges for cause, suggesting the juror can overcome the bias and "follow the law." It takes an uncommonly honest and courageous juror to resist the all-powerful judge's suggestion. Ironically, honest and courageous jurors are the kind I want. So, exercise challenges for cause with caution and diplomacy.

Peremptory challenges are made at the end of questioning, but the method varies from judge to judge. Some ask each lawyer in turn to dismiss jurors; others do it at sidebar or in chambers. Since all the jurors — in and out of the box — are numbered sequentially, both lawyers know who will be replacing a bumped juror.

During the prosecutor's questioning, relax, listen, and watch the jurors carefully. Provocative topics for discussion will jump out all over — the better the prosecutor, the more there will be. Note any red-flag answers (I literally use those little red-flag tapes) when an important subject comes up. When a juror reveals something to the prosecutor that concerns me, I might start with something like:

"I have to tell you, it was hard to hear what some of you talked about with the prosecutor. Now, Bob is charged with drunk driving. Mr. Jones, as I listened to you describe how your brother was killed by a drunk driver, it made me feel awful. I can't imagine how painful that is for you. I know everyone in this room feels for you, including Bob. I thought, now this is a heck of a deal — Bob sitting here charged with drunk driving and your brother killed by a drunk driver. I thought, it would be awful hard for anyone to put that aside and give Bob a fair trial. Do you think you understand my concerns? Could we talk a little about that?"

The discussion then needs to flow naturally from how Mr. Jones feels about drunk drivers to how that might affect Bob's chance for a fair trial to what we should do about it. It needs to be an honest conversation; you need to take some risks, to allow it to go wherever it leads. By revealing your own feelings honestly, you show the jurors that you're real, that it's okay to be honest in return. Such discussions will tell you a lot more about what's going on inside the jurors' minds than the despite-the-fact-your-brother-was-killed-by-a-drunk-driver-will-you-promise-to-give-my-client-a-fair-trial routine. Having an honest conversation will tell you how willing the juror is to acknowledge his biases, and how willing to struggle with them he is. As a defense lawyer, I want jurors who are human and honest and plagued with self-doubt. I don't want jurors who are smug, self-assured, and unwilling to struggle with the pain of uncertainty and self-doubt. They are too quick to judge others and find them wanting. 

Most lawyers advise that you should address each juror by name, but in the 15 minutes you're given in district court, it's way too distracting. Look each juror in the eye, make conversation, and avoid lecturing, or worse, cross examining the juror. Remember, you're just trying to get to know the juror, as you would when meeting anyone for the first time.

Always refer to your client by name, not "my client" or —heaven forbid — "the defendant." Occasionally walk over and stand behind him, put your hand on his shoulder, look at him periodically during questioning. Ask questions that require the juror to look at your client when answering. You're communicating your sincere concern for your client and turning him into a real person in the eyes of the jurors. Show genuine interest in the jurors' answers, listen carefully, and look each in the eye. You may laugh with a juror, but never at one. And it is always helpful to be able to laugh at yourself.

 "The wisdom of our sages and the blood of our heroes have been devoted to the attainment of trial by jury. It should be the creed of our political faith."
— Thomas Jefferson (1801)

On trial themes

Preparing for trial is a process of deciding where and how you're going to attack the state's case. It's the answer to the questions: "Why am I trying this case? Where are the reasons for doubt?" The theme of your defense is a short answer to these questions. It can be as simple as "the state's evidence is so full of contradictions that it just doesn't add up" or "my client was at home in bed when Jones was robbed — it had to be someone else" or "the cop jumped to the conclusion my client was guilty, then set out to try and prove it, ignoring contrary evidence every step of the way." Or, it may have to be more complicated. The point of having a theme is to focus your defense and the jury's attention on the part of the state's case that is the weakest, where you have a shot at finding reasons for doubt.

"For almost eight centuries trial by jury has remained the best, safest, surest, and perhaps the only bulwark to protect the basic rights of the average citizen. It is the 'Fence of Liberty.'"
— Joseph T. Karcher (1969)

Thinking like a juror

For me, one of the hardest things about jury selection is getting the jurors to talk honestly about their feelings. Everyone in a courtroom is nervous, including most jurors, and they don't want to do or say anything wrong. They know they are being scrutinized by the lawyers, they want to be on the jury, and they often naturally try to figure out what you want to hear. To get them talking, you need to show them it's good to be honest, and they won't be punished for it, by accepting their answers and personal feelings without judgment. While you are making judgments on the inside, on the outside, you're just gathering intelligence.

You start by being honest yourself, and by asking provocative, emotionally charged questions:

"As I talked about this case with friends and neighbors over the last few weeks, it made me worry. When I mentioned Bob was charged with molesting a child, almost everyone automatically thought he must be guilty, without knowing anything about the case. And even other attorneys told me 'no one can get a fair trial in a child-molesting case nowadays.' If you found yourself charged with this horrible crime, would you worry about that? Why?"

"Most states now have three-strikes-and-you're-out laws. Does everyone here favor them? Does anyone think a two-strikes-and-you're-out law would be even better?"

"What sort of image came to mind when you heard Bob was accused of drunk driving? Did you think of one of those drunk drivers in the news who kills someone? What if you were on trial for drunk driving, do you think you'd feel comfortable having someone with your feelings about it on your jury?"

The point is to start a discussion about our normal feelings we have about things that make all of us think or cringe, and then to see where it leads. They provide openings for talking about the issues in your case in a meaningful way.

"The jury trial has borne the test of a longer existence better than any other legal institution that ever existed among men. We owe more of our freedom and prosperity to it than all other causes put together."
— Chief Justice Jeremiah S. Black (1866)

Letting the jurors in on the secret: Why we're all here

One of the goals of jury selection is to give the jury a preview of why your client is not guilty. For instance, if you have one of those wall-to-wall bad-news cases where your only hope is discrediting the police officer, you can give them a heads-up on what to look for:

"Mr. Green, I expect Trooper Bowen will have a lot of bad things to say about Bob Brown, most of which we just plain dispute. Now, Bob can't ask him any questions, he has to depend on me. I'd like you to put yourself in his shoes for a minute. If you were sitting here wrongfully accused, you'd want me to challenge the trooper, wouldn't you? Do you think it's important for a police officer to be able to back up his statements?"

"I expect we'll talk a lot about physical balance tests in this trial, and that Trooper Bowen thinks Bob failed them. Are you willing to challenge his conclusions if there's reason to? Do you think cops are always right?"

"We don't agree with Trooper Bowen's conclusions. You wouldn't think much of me as his lawyer if I just sat there and didn't challenge him, would you? Will you ask yourself whether everything he testifies to makes sense?"

"The jury is an indispensable part of the machinery of justice. Liberty cannot exist without trial by jury, and despotism cannot long survive with it."
— Judge Henry Caldwell (1899)

POI/BOP/BRD

Lately I've heard other lecturers advise lawyers to avoid discussing the presumption of innocence, burden of proof, and reasonable doubt with jurors, because when you do it sounds like "I know my client's guilty, and I don't have a defense." If that's about all you talk about, I agree. But jurors are understandably confused about the presumption of innocence, burden of proof, and proof beyond a reasonable doubt — weren't you and I at one time? But, when asked straight out most jurors nod confidently, assuring everyone they're not stupid. They really don't fully understand these principles, and they need to. They need to because you're going to need them to feel good about acquitting someone they think is probably guilty because the evidence isn't strong enough. They can't do that without understanding and applying the rules properly.

However, I don't ask jurors to explain the presumption, burden, or reasonable doubt — it puts the juror on the spot, often embarrasses him, and makes everyone else afraid of you. Years ago, I watched a bright young defense lawyer deal with the subject in a fascinating way. The prosecutor had skillfully discussed all the things that are wrong with our criminal justice system: crazy jury verdicts, soft-headed judges, sneaky defense lawyers. He'd pretty well turned the jury into an angry mob. The defense lawyer stood up, his face creased with genuine concern, and said:

"You know, folks, I really understand how frustrated everyone is with our criminal-justice system. In fact, I often feel the same way. But as you and the prosecutor discussed how unhappy you are over crazy verdicts, I was getting more and more worried. You're right, sometimes the system doesn't work. Sometimes the guilty go free. And sometimes the innocent are sent to prison for decades."

"I was wondering, how can we fix it? Maybe you can help me figure it out. Mr. Jones, you said you think there are way too many criminals set free by our courts and are convinced the system is screwed up. I wonder what we could change about it. Do you think the presumption of innocence might be partly at fault? What if we just got rid of it? What if we presumed Bob Brown guilty? How about if you were accused of a crime you didn't commit — would you want to be presumed guilty?"

He went on to discuss all the trial rights Americans enjoy, and got the jurors to consider getting rid of each in turn. He got everyone to discuss what it would feel like for them or someone they loved to be wrongfully accused under such a system. They talked about what it would be like to be accused of a crime in Afghanistan under the Taliban, or what would likely happen to them in a trial in Iran. By the time he finished, every juror was a true believer. It was a work of art. It's the best method I've found for discussing the "rules" our system lives or dies by. Here are some conventional questions meant to provoke a meaningful discussion:

"Suppose you were sitting where Bob Brown is sitting, charged with a crime. Would you want someone who feels and thinks just like you feel and think right now on your jury?"

"Do you sometimes feel that our criminal justice system is too lenient with criminals? Why? What do you think we should do about it?"

"Do you feel that enough concern is paid to victims of crimes?"

"Do you think criminals have too many rights?"

"What do you think when you read in the paper that someone was arrested for a crime? Do you think: 'Wait a minute, he's presumed innocent?' Why don't we do that?" 

"Why do you think we require the state alone to prove its case? Why shouldn't a defendant have to prove himself innocent?"

"Do you think you understand the difference between finding someone innocent and finding someone not guilty? Is justice done when a person is found not guilty because the charge wasn't proven beyond a reasonable doubt? Why?"

"Why do you believe it's a good rule that Bob Brown doesn't have to prove himself innocent? Do you think there is a valid reason for putting the burden of proof entirely upon the state?"

"It is not difficult to understand why the founding fathers entrenched the right of trial by jury in the supreme law of the land. They regarded the exercise of that right as vital to the protection of liberty against arbitrary power."
— Justice John Marshall Harlan (1900)

Telling your story

When you're trying any criminal case, particularly DUIs, you and the jury are going to sit through a lot of bad evidence before you even start your case. How can they keep open minds in the face of such overwhelming evidence of guilt? By being told beforehand why the case is being tried, both in jury selection and opening, and getting them to think in terms of the rest of the story.

"Mrs. Smith, you described earlier how your children sometimes argue and that you always wait until you have heard both sides of the story before trying to figure out the truth. Why do you do that? Of course, you don't have to be convinced beyond a reasonable doubt to make up your mind in that situation, do you?"

"Would you ever make up your mind about any controversy after hearing only one side of the argument? Why not? Have you ever done so and regretted it?"

"Of course in a trial, the prosecutor has the advantage of putting on its version of what happened first and a lot of bad things will be said about Mr. Brown before we get a chance to respond. Will you make a special effort to remind yourself to wait during the prosecution's case until you've heard our side of the story?"

"If you find yourself even leaning toward the prosecution during its case, do you think you should make a special effort to remind yourself that you haven't heard our side yet? Why is that important to do?"
  
Another possible approach:

"Now, under the rules in this courtroom, Bob and I are not required to prove anything. We don't have to convince you of his innocence — the state has to prove him guilty. If I decide not to have Bob testify, might you hold that against him?"

"When it comes to testifying, Bob's in kind of a damned-if-he-does-and-damned-if-he-doesn't situation, isn't he? If I decide not to have him testify, it would be natural to think he's trying to hide something, wouldn't it? But if he does testify, the prosecutor's going to argue he must be lying and is just trying to save his skin, right? Do you see what I mean? Would you be comfortable testifying in a trial? Can you think of any reason a defendant wouldn't testify, other than that he's guilty?"

"Well if the judge tells you that you can't hold it against Bob if he doesn't testify, then one of the other jurors brings it up during your deliberations, what are you going to do?"

"Do you think the rule that says a person accused of a crime doesn't have to testify is a good one? Can you think of any good reasons for it? Do you think a person should be required to get up and answer the charges on the witness stand?"

"No single institution that the wisdom of man has ever devised is so well calculated to preserve a people free, or make them so, as trial by jury."
— Judge Sydney Taylor (1838)

Biases are like ears, everybody's got 'em

Almost all jurors have strong negative feelings about criminals, but will deny any bias against the defendant. If you asked a white juror, "Are you prejudiced against black people?" he would almost certainly deny it. To get at a juror's real feelings, you have to sneak up on him, by asking a series of questions. In a case involving race, for instance:

"Mr. Jones, how long have you lived in the suburbs? From where in the city did you move? Did school busing influence your decision to move? What other reasons did you have?"

"What are some of the things you prefer about your present neighborhood? Was your family's safety a consideration?"

"Do you enjoy going for walks or jogging around your new neighborhood? Do you think you'd feel a little safer going for a walk or jog in your neighborhood versus downtown Seattle?"

"Would you feel less safe walking around the Central District than your own neighborhood? Why?"

"Do you share the feeling of a lot of us, that there's more crime in areas where mostly black people live?"

"Do you own firearms? Was personal protection a part of your reason for purchasing a firearm?"

"Does your place of employment have an affirmative-action program? How do you feel about it? Has it been applied fairly in your experience? Do you believe affirmative-action programs do more harm or more good for minorities?"
 
The point is, uncovering bias is a process. The idea is to allow the juror to reveal his real attitudes by answering fairly innocuous, indirect questions that don't directly challenge his fairness. In doing so, you'll find out how aware the juror is of his own biases. Generally speaking, the more aware, the better the defense juror.

One of the best techniques I've seen for handling the subject of bias was used by Seattle attorney Jeff Jones in a case involving a direct conflict between his client's version of the incident and that of the arresting officer. Using a series of questions, Jeff crept up on the issue rather than confronting it directly:

"How many people here think that police officers always tell the truth?" (Only a couple of hands were raised.)

"How many think police officers always lie?" (No hands were raised.)

"How many here think police officers usually tell the truth?" (Most hands were raised.)

"How many believe that a defendant in a criminal case usually lies?" (Numerous hands were raised.)

"Well, we've just discovered a bias. Most of us have already decided that Trooper Bowen is probably going to tell the truth and Bob Brown is probably going to lie."

Or, current events can provide great opportunities for getting to the heart of the matter quickly:

"I'm sure everyone has been following the tragedy down in New Orleans and Mississippi. There's been a lot of talk about the role of race in the aftermath. I'm wondering how you felt about it. Can anyone tell me about how they reacted to seeing all those folks at the Superdome? Did they have any responsibility for their plight by not evacuating in the first place? Why or why not?"

"Did anyone see the two photos of the black man and the white couple wading through water with bags of groceries? Do you recall the descriptions that were with the photos? What did you think about that?"

"A lot of people think the rescue would have been a lot faster if all those folks had been white. Does anyone agree with that?"

"The institution of trial by jury has been sanctified by the experience of the ages. It had been recognized by the Constitution of every state in the Union. It is deemed the birthright of Americans and it is deemed that liberty cannot subsist without it."
— Judge Alexander Hanson (1788)

Educating the jury

"Educating the jury" on your side of the case is just giving them a heads-up on where the fulcrum points of the case are, where they need to focus their attention. Let's say your client had to perform field sobriety tests following a car accident. Find a juror who's been in an accident and discuss what it felt like.

"Ms. Jones, I'd like you to think back to when you were in that accident; how did you feel immediately afterward? Did it take a while to get back to feeling normal?"

"Even though you weren't injured, would it have been a good time for you to do balance tests? How do you think you would have done on those tests? Do you think being in the accident might affect your ability to do those tests?"

"Were there two different versions of who was at fault in the accident? Did the police officer decide who was at fault on the spot? Did you and the other driver agree with his conclusion?"

Or let's say your client had a personality conflict with the arresting officer. Ask if anyone's had a bad experience with a cop. Then ask if they think cops are human, too, and how they can make mistakes — even when they're positive they're right.

"Have you ever been stopped by a police officer? Did it make you nervous? Did you have a suitcase of heroin in the trunk? Then why were you nervous?"

"Can you understand how Bob might have felt when Trooper Bowen started getting aggressive and impatient with him?"

"Have you ever been arrested? How do you think it would make you feel? Would you know what to do or say under the circumstances?"

 "Trial by jury is the foundation of our free Constitution: take that away and the whole fabric will soon molder into dust."
— Lord Charles Pratt (1792)

Making good use of "bad" jurors

Jurors with close connections to law enforcement make bad defense jurors, right? Not necessarily. If you're willing to ignore the stereotypes, relatives of police officers can be your best friend on the jury. For example, if the juror's father was a cop, voir dire can be a gold mine of information on how human and biased cops can be.

"Do you think it was a little harder growing up the daughter of a police officer? Why? Was your dad maybe a little more of a disciplinarian than your friends' fathers?"

"When you stayed out late, or a friend was accused of doing something wrong, did your dad always wait for the other side of the story before deciding what happened?"

"Did your family ever socialize with other police officers?"

"Did you find that most police officers believe the person they've arrested is guilty? In your experience, do police officers presume an accused person innocent?"

"Have you ever known any biased police officers? How were they biased?

"What sort of slang terms have you heard police officers use to describe people they've arrested?"

"From some police officers' points of view, what we're doing in this courtroom is a waste of time, isn't it? Do you think it is? Why not?"

"If you were to vote 'not guilty' at the conclusion of this case, would you consider it a criticism of the police officer? Why not?"

Jurors who have been victims of crimes will usually have some strong feelings about the experience and the way it was handled by the police. Were the cops heroes or insensitive clods? Is the juror waiting for an opportunity to repay the police and prosecutors for helping him through the ordeal? Was the juror disillusioned with the police response?
  
"How was your case handled by the police and prosecutor? How do you feel about police as a result?"

"How would you rate police officers in terms of honesty?"

"When you pass a police officer on the street, do you feel like waving or stopping to shake his or her hand?"

"We are bound to the jury trial by all the holiest traditions of our past history; we esteem it as the very bulwark of our liberties."
— John Norton Pomeroy (1863)

Prior experiences with court

Jurors who have testified in court can sometimes help explain what angst your client feels.  

"When you were a witness in court? What was testifying like? Were you nervous? Do you think it showed? Was it because you weren't telling the truth? Can you understand how Bob might feel nervous even though he's telling the truth?"

"Trooper Bowen is a professional witness who's been trained how to testify and who's done it many times. Do you think you can look beyond the uniform and his manner to see if what he's saying is supported by the rest of the evidence?"

A juror's prior jury service can be useful in discussing the differences between civil and criminal cases. You also need to know if the juror has sat on any of the prosecutor's cases during this same term.6

"Trial by jury is the most valuable privilege of an American citizen. It stands as a bulwark of protection for even the lowliest individual against the power of the State. As long as we have trial by jury, our sacred freedoms shall remain safe and secure."
— Justice Alphonse Beeton (1838) 

Stereotyping

Questions that don't focus on certain personality traits are fun, but dangerous. I have a friend who is a very good trial lawyer who automatically pre-empts any juror who is anti-NRA or doesn't like hunting. He is convinced they are bad jurors. I think he's wrong, but he wins most of his cases. I don't recommend using stereotypes, because they can just plain mislead you.

For example, if you ask someone which dead president he most admires, his preference for John Kennedy (or Ronald Reagan) might mean he's liberal (or conservative). But so what? Without substantial follow-up discussion, it doesn't mean he's a good or bad juror. So, let me join the chorus of other commentators in urging you to avoid use of such questions.  

But, because some lawyers swear by them, I offer the following example of a list for use in a DUI case. A word of caution: Profiling is the easiest, but least reliable method of selecting jurors.
 
Traits of defense-oriented jurors (in a DUI case):

• Drinkers who admit to having more than two drinks at one sitting.
• Middle and lower classes.
• Those who are underdressed for a courtroom.
• Blue-collar workers.
• Country-music fans.
• Rugby-, softball-, dart-, or pool-team members; especially with tavern sponsors.
• Smokers.
• Overweight persons who drink.
• Social, easygoing, happy people.
• Individualists, anti-authoritarian people.
• Those who have fought many traffic tickets.
• Those who root for the underdog.
• Retired non-commissioned military personnel.
• Love-my-country-but-don't-trust-my-government types.
• Beer and bourbon drinkers.
• Optimists.
• Anyone you instinctively like.
 
Traits of prosecution-oriented jurors (in a DUI case):

• Nondrinkers and recovering alcoholics.
• MADD members and sympathizers.7
• Uptight, judgmental, unhappy people.
• Physical fitness buffs; non-team sports participants.
• Those with connections to police or prosecution.
• Those with close friends or family members with drinking problems.
• Those with experience with accidents involving a drunk driver.
• Computer geeks.
• Engineers and technical types.
• Pessimists.
• Persons in the medical professions.
• Persons employed in the insurance industry.
• Retired military officers.
• Supervisors.
• White-wine drinkers.
• Those who never drive after drinking.
• Anyone who you instinctively dislike.

Conclusion

Effective jury selection requires solid preparation, good listening techniques, a conversational approach, flexibility, and, perhaps above all, a willingness to be real in front of the jury. No, it's not easy, and never will be. But if you can allow yourself to be human, to see the jury as your ally, and have faith that justice will be done by your new-found friends, you might be able to capture just a little bit of that Gerry Spence magic.

I wish you luck.

A 2003 recipient of the Washington Association of Criminal Defense Lawyers' William O. Douglas Award for "extraordinary courage and dedication to the practice of criminal law," Stephen Hayne has tried hundreds of cases over 30 years, from capital murder to reckless driving. He has served as president of the Washington Association of Criminal Defense Lawyers and has chaired the criminal law sections of the WSBA, WSTLA, and KCBA. Mr. Hayne has been a trial practice instructor at the National Institute of Trial Advocacy, the Trial Masters Program, and the University of Washington and Seattle University schools of law. He is co-author of Defending DUIs in Washington (Lexis/Nexis). Mr. Hayne has been a featured speaker at more than 80 CLE programs in the United States and Canada and is a founder of the National College for DUI Defense, held annually at Harvard Law School. He is a past member of the WSBA Editorial Advisory Board.

The Ready-for-Trial Checklist for a DUI Defense

___ Trial notebook
___ Trial brief
___ 20 juror questionnaires
___ 20 pens/pads
___ Jury instructions
___ Witness list with phone numbers
___ Proof of service of subpoenas
___ Exhibits/photos
___ NHTSA manual
___ WSP FST manual
___ Datamaster database and
       repair records
___ Alcohol studies for cross
___ Court rules
___ Evidence handbook
___ Defending DUIs in Washington
___ Portable easel
___ Marking pens
___ Three extra notepads
___ Extra pens/pencils
___ Post-It notes
___ Flags
___ Cell phone

Sample Juror Questionnaire for a DUI Defense

Please carefully consider the following questions:

1. Have you ever contested a traffic ticket of any kind? ___no ___yes

2. Have you ever testified in court? ___no ___yes

3. Are you in favor of mandatory seatbelt and/or motorcycle helmet laws?
 ___no ___yes

4. Do you believe that, on the whole, the Criminal Justice System is:
 ___too lenient ___too harsh ___about right.

5. Have you ever had a particularly pleasant or unpleasant experience with a police officer? ___no ___yes

6. Have you ever been involved in a traffic accident involving alcohol? ___no ___yes

If yes, when/where__________________________________.

7. When it comes to testifying in court, would you generally consider a police officer more likely to be ___more truthful ___less truthful ___as truthful, when compared to other witnesses?

8. Have you any specialized knowledge, training, or experience in law enforcement, alcohol/drug abuse, chemistry, or medicine? ___no ___yes

If yes, please explain______________________________________.

9. How often do you consume one or more alcoholic beverages?
 ___never ___rarely ___occasionally ___once a week ___daily

10. Have you, any friends, or any relatives ever had problems with alcohol?  ___no ___yes

If yes, please explain _____________________________________________.

11. Do you agree or disagree with the following statement? It should be against the law to drive after consuming any alcohol at all. ___agree ___disagree

12. Do you favor tougher laws regarding drinking and driving? ___no ___yes

13. Have you ever contributed money to or belonged to any organization advocating stricter laws regarding drinking and driving (MADD, SADD, etc.)? ___no ___yes

14. Have you heard or read anything concerning the state's breath-testing machines?  ___no ___yes

15. Based upon what you have heard, what is your opinion of the machine's reliability? ___not reliable ___somewhat reliable ___usually reliable ___totally reliable

16. List the three people you admire the most.
 (1)___________________ (2)___________________ (3) ___________________

17. List the three people you admire the least.
 (1)___________________ (2)___________________ (3) ___________________

18. Who is your favorite radio talk-show host? ____________________________

19. Is there anything which might affect your ability to be fair in a DUI case? ___no ___yes

If yes, please explain __________________________________________.

NOTES

 1. Obviously, you will have thoroughly discussed appropriate dress and courtroom behavior with your client prior to trial.
 
2. See the end of the article for a sample of one I use in DUI trials.
 
3. See the end of the article for a DUI case sample.
 
4. CrR 6.4(e), Peremptory Challenges; State v. Laureano, 101 Wn.2d 745, 758 (1984) (the extent of voir dire is within the discretion of the trial court; however, it should allow the parties sufficient information so they can effectively challenge for cause and intelligently use their peremptory challenges); State v. Frederiksen, 40 Wn. App. 749 (1985). See also Cartmell v. State, 784 S.W.2d 138 (Tex. App. 1990), which ruled that a twenty minute limitation on voir dire was unreasonable. See also U.S v. Keen, 508 F. 2d 986 (C.A. Wash 1974) (Cert. denied) and U.S. v. Jones, 722 F. 2d 528 (9th Cir 1983).
 
5. State v. Latham, 100 Wn. 2d 59 (1983); State v. Moody, 18 Wash. 165 (1897); Wash. Const. Art.1, Sec. 22; RCW 4.44.170, .180, .190. See also City of Cheney v. Grunewald, 55 Wn. App. 807 (1989) (juror was member of MADD, had niece killed by drunk driver, but claimed had no bias; court ruled that failure to grant challenge for cause was reversible error). 
 
6. United States v. Jefferson, 569 F. 2d 260 (5Cir 1978) held that jurors who have served in similar cases during the same term may be challenged for cause.
 
7. City of Cheney v. Grunewald, 55 Wn. App. 807 (1989) held that membership in MADD should be considered in evaluating a challenge for cause.