You cannot pick a jury. I know that is a bold statement and will be met with howls of resistance by those who think you can actually, scientifically, determine who is just the right juror. I'm sorry, but my experience teaches me that this cannot be done.
You cannot predict how an individual will act in a group setting, under pressure with the data that is available to you at the time you have to pick your jury. Further, you cannot predict how that group of individuals will act once it is time for them to deliberate. The interaction of 12 individuals, previously unknown to each other, with separate and distinct personalities and backgrounds cannot be reduced to some quantifiable scientific equation. There are just too many variables.
You can't know who is really going to emerge as a strong voice. Will it be the big, middle-aged construction worker or the sixty year old retired school teacher? Will the well educated college professor carry the day or will it be the thirty year old computer programmer? Do you want engineers or not on your jury? What about people who have had a recent death in the family? People who have known grief and loss? People who've been injured? People who are recovering addicts? People who have unresolved issues with their parents or siblings?
As you start to ask the questions, the absurdity of trying to figure out all the answers becomes clear.
So, what can you do?
You can pose a problem similar to the problems that the jury will have to wrestle with in your case and then watch and let them work through it. This requires some forethought. You have to understand the problems in your case. You have to be able to reduce them to a common concern, fear or issue that the members of the jury are likely to have experienced. Then, you have to get them to open up and work with you.
The last part is potentially the hardest.
Put yourself in their shoes. How would you feel if you were called to jury duty and had never spent any time in a court room setting? How would you feel once you check in, get a badge, and are shuffled off into a big room with a bunch of strangers? Wouldn't you really rather be at work, or at home, or anywhere else? Aren't you hoping they don't choose you?
Some clerk is telling you where to go and what to do. There are bailiff's around with guns. You are in an unfamiliar setting waiting. You wait for an hour or more and nothing happens.
Someone comes and they take you and a bunch of others to a courtroom. They call you a panel or a venire. They sit you and some others in the jury box. The rest of the group is put in the pews nearby. The Judge is there, in black robes, looking very serious and imposing. She doesn't look happy to be there and she doesn't look happy that you are there. Is there something wrong? Is this a bad case? Did you do something bad?
She starts talking to you and some of what she says makes sense. Some of what she says is in a foreign language only understood by lawyers. But, you learn a little about what's expected of you, who else is in the courtroom and what may happen. And she asks you a bunch of questions. Then, she turns you over to the lawyers.
A lawyer pops up and starts talking to you. You don't know what the case is about, but he's asking you questions about stuff that seems like it might have to do with the case. It's all out of context and jumbled up, so it doesn't make much sense to you. He wants you to agree with him. Everyone else is nodding. So, you do, too. Sure, I can be fair, you say.
He smiles at you, you did something right. He asks someone nearby about some personal stuff. They answer. The lawyer frowns. He asks more questions, penetrating questions. You feel uncomfortable and squirm in your chair as the juror on the other end gets a little red in the face. What did he do wrong? Why is the lawyer unhappy with him? Why is he cross examining him?
Imagine how you would feel in that situation. When you are under pressure in a room full of strangers, its hard to feel comfortable and let your defenses down.
How things can be different
The lawyer stands up and starts to talk with you, not at you. He asks some easy questions and then he waits for an answer. He's not arguing with anyone. He's not trying to convince anyone of anything. He seems genuinely concerned about the trial and his client. He seems like he is not trying to figure out a reason to get rid of you, but he want's to include you, and everyone else there.
You begin to understand he has some concerns about the trial. He let's you know how they make him feel, and why. He communicates his true feelings, and you can tell that he's being genuine. You can always tell when someone is being genuine. He's not trying to fake anyone out.
When someone on the jury panel speaks, he listens carefully. He focuses on that person. He pays attention and makes sure he understands what they are saying. He opens the door for further comments and doesn't seem scared that jurors are talking with him and to each other. In fact, it seems to make him happy that jurors are voicing their opinions and thoughts.
As the jury warms to him and you all talk to him about things that might be argued at trial, things that you might have to discuss together in the jury room, you start listening to your fellow jurors and they start listening to you. You begin to warm toward each other and accept each other.
You begin to form a group. You begin to come together. As you learn about each other, there may even be things you don't like, but people are being honest and talking about themselves. And the lawyer is right in the middle of it, encouraging it, letting it happen, facilitating it.
And he never tries to argue or cross examine someone. If there is a level of discomfort, it comes from the subject, not the way he talks to someone. He becomes part of the group and people are listening to him and reacting to what he says and asks.
Maybe it comes out that someone in the group has trouble working through a particular issue. They just can't seem to be open about it. You can see he understands, and you understand when that juror is not chosen later. I makes sense because they would have trouble handling that issue during the trial.
He talks about what is going to happen in the trial, and what you and the other jurors are going to do. He asks how you feel about doing those things. You begin to lose your fear of the process and warm to your task.
You begin to feel empowered as you realize you matter. He says you are the most important part of the trial and by the way he's treating and interacting with you, you start to feel that you might be.
You gain confidence. You feel ready to go forward and be a juror.
And the lawyer wants you to be on the jury. You can feel it. It is a warm, accepting feeling. You are ready to work, and you feel comfortable with him. You can be fair. You can be open minded. You can look at this person's case exactly the way you would want someone to do it if you were on trial.
The jury is ready. They have chosen themselves as jurors. Or, in rare cases, they have shown they cannot be a juror on that particular case. They have given themselves permission to be brave, strong, open and fair. They have shown themselves to be willing to work together and to carefully work through the issues of the case. The lawyer has watched them work together and knows that they will do a good job.
They will carefully consider his case. They trust him and he trusts them. They will be fair.
What more can you ask of a jury?
Bob Vogel
rlvogel@robertvogellaw.com
865-357-1949
The Vogel Law Firm
www.robertvogellaw.com
Bob Vogel is an experienced trial attorney who represents defendants in criminal cases and individuals in injury, civil rights and consumer protection cases in both Federal and State Courts.
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