JURY SELECTION
FROM THE INSIDE OUT
(IT’S A LOT HARDER THAN IT LOOKS!)
OUTLINE BY GARY FARRELL, ESQ.
I. INTRODUCTION- “GET THE JURY TO LIKE YOU”—WORDS OF WISDOM FROM A NOW FAMOUS PROSECUTOR TO AN ADA TRYING HIS FIRST CASE.
A. BREAK THE ICE—SHOW THEM YOU HAVE SOME COMPASSION FOR THEIR PLIGHT
1. THEY DON’T WANT TO BE THERE—IF YOU HAVE ANY DOUBTS, JUST ASK THEM
2. THEY CALL IT JURY “DUTY”, NOT JURY “VACATION” FOR A REASON
3. EVERYBODY SERVES NOW—“I FEEL YOUR PAIN” OR “CONFESSIONS OF THE LAWYER/JUROR”
4. IT’S REALLY LIKE AN UPSIDE DOWN VERSION OF “SURVIVOR”—THE FATHER OF REALITY TV SHOWS
B. THE PROCESS IS ARTIFICIAL, AWKWARD FOR EVERYONE—IT’S OKAY TO ACKNOWLEDGE THAT
1. TRY ASKING THESE PERSONAL QUESTIONS TO A COMPLETE STRANGER NEXT TIME YOU ARE LINE IN THE BANK AND SEE WHAT HAPPENS
2. IT’S THE ONLY GAME IN TOWN, SO YOU MIGHT AS WELL PLAY
3. GET THE JURORS TO “SPEAK THE TRUTH” (LOOSE TRANSLATION OF VOIR DIRE), WE CAN HANDLE IT (IF ARCHIE BUNKER IS ON YOUR PANEL YOU NEED TO KNOW IT)
C. BELIEVE IT OR NOT—MOST PEOPLE DON’T LIKE OR TRUST LAWYERS (THESE SAME PEOPLE MAY NOT CONSIDER ADAS LAWYERS AT ALL)
1. WHO THINKS SHAKESPEARE WAS ON TO SOMETHING WHEN HE PENNED THE IMMORTAL PHRASE, “FIRST THING, KILL ALL THE LAWYERS”?
2. WHO THINKS THE JIM CAREY MOVIE “LIAR, LIAR” IS A DOCUMENTARY?
II. IT’S A GOOD IDEA TO LISTEN TO THEIR ANSWERS BECAUSE LOOKS CAN BE DECEIVING (OR STEREOTYPING TOO MUCH CAN BE DANGEROUS)
A. THE BANKER FROM BENSONHURST WHOSE UNCLE WAS “FRAMED” BY THE FBI
B. THE EX-COP WHO HATES COPS
C. THE HANGING SOCIAL WORKER
III. DOES ANYBODY REALLY BELIEVE IN THE PRESUMPTION OF INNOCENCE? (VERY FEW PEOPLE DO, AS IT GOES AGAINST HUMAN NATURE, SO LET’S JUST ADMIT IT AND GO FROM THERE)
A. WHAT DO YOU THINK THIS GUY IS DOING HERE? HE PROBABLY DIDN’T WIN A CONTEST.
B. HEY THIS ISN’T RUSSIA—THEY HAVE TO PROVE GUILT BEYOND A REASONABLE DOUBT—IS EVERYBODY OKAY WITH THAT?
C. THE DEFENDANT MAY NOT TESTIFY—OKAY, WHAT’S HE HIDING? YOU CAN’T HOLD IT AGAINST HIM.
III. THERE’S A MOVIE FOR EVERY CASE (EVERYBODY LOVES MOVIES) TO BRING OUT YOUR THEME
A. THE LYING WITNESS—AND THE WINNER IS......
1. A FEW GOOD MEN—I’M NO TOM CRUISE—DA’S LYING COPS WILL PROBABLY NOT “BREAK”—A LA JACK NICHOLSON-- UNDER MY CROSS-EXAMINATION. PROMPTS QUESTION: HOW DO YOU DETERMINE IF SOMEONE IS LYING? MOVE INTO SOME CASE SPECIFIC STUFF LIKE THE WITNESS WHO GETS DEAL OR THE INCONSISTENT WITNESS. TRY TO RAISE THESE ISSUES BY ASKING OPEN ENDED QUESTIONS SUCH AS, “DOES ANYONE THINK THAT A WITNESS’S TESTIMONY COULD BE INFLUENCED BY THE DEAL THEY ARE GETTING? WHY DO YOU THINK THAT?”
*I PROBABLY MENTION THIS MOVIE IN EVERY CASE TO LET THE JURORS KNOW UP FRONT THAT IN REAL TRIALS THE WITNESSES DON’T ADMIT THEY ARE LYING WHILE ON THE STAND
**I ALSO THINK IT IS HELPFUL TO GET FIRST TIME JURORS INTERESTED IN THE CASE BY CONTRASTING REAL TRIALS WITH THOSE DEPICTED IN “LAW & ORDER” AND “THE PRACTICE.” IT DOESN’T HURT TO INVOKE THE CLASSIC “PERRY MASON” OR EVEN “MATLOCK” WITH MORE SEASONED JURORS.
B. THE MISTAKEN WITNESS—AND THE WINNER IS......
1. MY COUSIN VINNY – MERE MENTION OF THIS CLASSIC WILL ALWAYS DRAW A SMILE IN BROOKLYN. PROMPTS QUESTION: WHAT CAN CAUSE SOMEONE TO BE MISTAKEN? CAN A PERSON WHO IS SURE ABOUT THEIR IDENTIFICATION NONETHELESS BE MISTAKEN? WHY DO YOU THINK THAT?
C. THE FLEEING DEFENDANT—AND THE WINNER IS. . . . .
1. THE FUGITIVE—ONE OF MY FORMER CLIENTS ESCAPED FROM COURTHOUSE HOLDING PEN DURING TRIAL (DISPLAYING THE UTMOST CONFIDENCE IN HIS COUNSEL). PROMPTS QUESTION: CAN A REAL LIFE PERSON RUN FROM THE COPS YET STILL BE INNOCENT? WHAT WOULD MAKE HIM RUN?
D. THE DEFENDANT WHO KILLED BECAUSE HE HAD NO CHOICE—AND THE WINNERS ARE. . . . .
1. ALCATRAZ (STARRING KEVIN BACON)
2. TRUE BELIEVER (STARRING JAMES WOODS)
*BOTH MOVIES INVOLVE PRISONERS WHO KILL TO DEFEND THEMSELVES
3. DELORIS CLAIBORNE (STARRING KATHY BATES) BATTERED WIFE KILLS HUSBAND IN SELF-DEFNESE
THESE MOVIES PROMPT QUESTION: CAN EVERYONE ACCEPT THAT IN CERTAIN SITUATIONS VIOLENT ACTS CAN BE JUSTIFIABLE?
E. THE DEFENDANT WHO APPEARS GUILTY AS HELL (BUT WHO REALLY DIDN’T DO IT)—AND THE WINNERS ARE. . . . .
1. SHAWSHANK REDEMPTION
2. PRESUMED INNOCENT
BOTH MOVIES PROMPT THE QUESTION: DOES EVERYONE AGREE TO WAIT UNTIL THE ENTIRE CASE IS OVER BEFORE MAKING A JUDGMENT? DO YOU AGREE THINGS ARE NOT ALWAYS WHAT THEY SEEM? I.E. FINGERPRINT ON THE GLASS IN PRESUMED INNOCENT MADE HARRISON FORD’S CHARACTER LOOK GUILTY
***BOTTOM LINE WITH USING MOVIES IS TO GET JURORS TO LOOSEN UP AND TALK TO YOU AND TO GET THEM THINKING THAT IN REAL LIFE THERE ARE INNOCENT PEOPLE CHARGED WITH CRIMES THAT THEY DID NOT COMMIT
****IF JUDGE ALLOWS, ASK ABOUT CASES “RIPPED FROM THE HEADLINES”, I.E., MENTION CENTRAL PARK JOGGER CASE WHEN YOUR DEFENSE IS COERCED CONFESSION AND ASK JURORS IF THEY THINK THAT IS THE ONLY CASE WHERE INNOCENT PEOPLE HAVE EVER CONFESSED, ETC. DUKE LACROSSE CASE GOOD TO THROW IN ON A SEX CRIME CASE TOO.
IV. SOME COMMON SENSE TIPS TO HELP YOU FIND OUT ALL OF THE INFORMATION YOU NEED FROM 16 PEOPLE IN 15 MINUTES THAT WILL ENABLE YOU TO SELECT THE RIGHT JURY (SEE, I TOLD YOU THIS WAS HARDER THAN IT LOOKS!)
1. YOU HAVE TO BE INTO IT, I.E. ANIMATED, SINCERE, THOUGHTFUL, ETC., OR THE JURY WILL NOT BE.
2. THERE ARE NO RIGHT ANSWERS, ONLY HONEST ANSWERS. THANK THE EXCUSED JUROR WHO TOLD THE JUDGE THAT HE THINKS THE DEFENDANT MUST BE GUILTY IF HE DOESN’T TESTIFY.
3. USE SIMPLE, SHORT QUESTIONS THAT ARE NOT PACKED WITH LEGAL TERMS. “WHY DO YOU THINK THAT?” IS A GREAT FOLLOW-UP WHEN A JUROR GIVES YOU AN ANSWER YOU WANT TO HEAR
4. ACKNOWLEDGE THE REPTIVITIVENSS OF THE PROCESS, ESPECIALLY WHEN BEGINNING A SECOND OR THIRD ROUND (IT’S LIKE SEEING THE EARLY SHOW AT A COMEDY CLUB AND GETTING LOCKED IN AND FORCED TO SEE THE LATE SHOW TOO). TRY TO MIX IN SOME NEW MATERIAL IN EVERY ROUND.
5. IF YOU HAVE TO START QUESTIONING RIGHT BEFORE LUNCH OR AT 4:45 P.M., ACKNOWLEDGE THAT EVERYONE IS LOOKING TO RUN OUT BUT REMIND THEM HOW IMPORTANT IT IS TO YOUR CLIENT TO SELECT A FAIR JURY. THEN TRY TO MAKE IT FAST AS POSSIBLE.
6. ACKNOWLEDGE THE IMPOSSIBILTY OF GETTING TO KNOW 16 PEOPLE IN 15 MINUTES AND APOLOGIZE UP FRONT FOR NOT QUESTIONING EVERYONE INDIVIDUALLY (YOU SHOULD ALREADY HAVE NOTED THE FREAKS SO DON’T WASTE TIME TALKING TO THEM).
V. THE ROAD TO APPEAL IS PAVED WITH CHALLENGES FOR CAUSE
A. CHECK OUT CPL § 270.20
1. “HAS A STATE OF MIND LIKELY TO PRECLUDE AN IMPARTIAL VERDICT” CPL § 270.20(1) (B). MOST COMMMONLY MADE CHALLENGE FOR CAUSE.
A) PEOPLE V. JOHNSON, 94 N.Y.2D 600 (2000),
SEMINAL CASE ON THIS ISSUE (CARRY IT WITH YOU), JURORS MUST GIVE “UNEQUIVOCAL ASSURANCE OF IMPARTIALITY.” THIS IS ALSO KNOWN AS THE UNEQUIVOCAL “EXPURGATORY OATH.” “I THINK I COULD BE FAIR”—IS NOT GOOD ENOUGH.
B) IF YOUR CHALLENGE FOR CAUSE DENIED, YOU MUST USE PEREMPTORY CHALLENGE ON THAT JUROR AND EXHAUST ALL OF YOUR PEREMPTORIES FOR THIS ISSUE TO BE PRESERVED FOR APPEAL. PEOPLE V. CULHANE, 33 N.Y.2D 90, 97.
**LIMITED EXCEPTION AT CO-DEFENDANT TRIAL, IF A MAJORITY OF DEFENDANTS DO NOT AGREE TO THE PEREMPTORY CHALLENGE, THE ISSUE IS PRESERVED IF THE DEFENDANT MAKES A RECORD THAT HE WISHED TO PEREMPTORILY CHALLENGE THE JUROR AFTER THE CHALLENGE FOR CAUSE WAS DENIED. PEOPLE V. FOSTER, 100 A.D.2D 200 (2D Dept. 1984).
C) PEOPLE V. JONES, 125 A.D.3D 403 (1ST Dept. 2015), JUROR “COULD NOT SAY” IF HE COULD SET ASIDE HIS BIAS IN FAVOR OF POLICE AND NEVER GAVE UNEQUIVOAL ASSURANCE THAT HE COULD RENDER AN IMPARTIAL VERDICT—REVERSED
D) PEOPLE V. JACKSON, 125 AD3D 485 (1ST Dept. 2015), SEVERAL JURURS, CHALLENGED FOR CAUSE BY DEFENSE, SAID IT WOULD BE DIFFICULT TO RENDER DECSION WITHOUT HEARING FROM DEFENDANT AND TRIAL COURT DID NOT GIVE IMMEMDIATE CURATIVE INSTRUCION ON BURDEN OF PROOF OR ALLOW DEFENSE COUNSEL TO PHRASE QUESTIONS USING THE LANGUAGE FROM THE COURT’S CHARGE ON SUBJECT--REVERSED