0001 VERSACOMP (4.2 ) – COMPOSE2 (4.37) 07/31/02 (13:13) The Trial Process: Law, Tactics and Ethics J:\VRS\DAT\03106\3.GML --- LC3106.STY --- POST 1 Chapter 3 SELECTING A JURY § 3.01 INTRODUCTION The first phase of the trial is the selection of a jury. A panel of jurors is brought into the courtroom, given some preliminary information about the case from the judge and the procedure for selecting which of them will serve. A few are selected at random to sit in the jury box. Then for the next several hours, the judge and attorneys will question these prospective jurors about their experiences, backgrounds, and attitudes. Any jurors who seem to harbor specific biases and prejudices concerning the people involved in the case or the type of case will be excused, and others called up to take their places. Those who remain seated in the jury box at the end will make up the jury. It is a clumsy and imprecise procedure for selecting a jury, and one that carries no guarantee that those who remain as jurors will be fair and impartial. Attorneys hold different views about what you should expect to accomplish and the importance of the jury selection phase of the trial. Clearly, the outcome of some cases — especially close ones — can hinge on the political and social views and biases of the jurors who happen to get selected. Every attorney talks about “good” juries and “bad” juries. The harder question is whether an attorney’s role in the jury selection process has much of an effect on the composition of the jury. Can you get to know two dozen people well enough in a few hours of formal questioning to tell who will make good jurors for your side and who will not? There is no agreement on the answer. There are four main goals you can try to accomplish during the jury selection phase: c Because this is the first time the jurors see you and your client, make a good first impression. Making a good impression includes showing the jurors that you care about them and are interested in what they have to say. c Try to identify and remove the most obviously biased jurors likely to vote for your opponent. c Begin the process of persuasion by introducing the jury to your theory of the case, your client and main witnesses, and the key pieces of your evidence. c Do all this without taking too long or putting the jury to sleep. There is no consensus about how to achieve these goals. Attorneys employ many approaches and hold many different opinions, but have few real answers. To most attorneys, jury selection is the least satisfying part of the trial. 85 0002 VERSACOMP (4.2 ) – COMPOSE2 (4.37) 07/31/02 (13:13) The Trial Process: Law, Tactics and Ethics J:\VRS\DAT\03106\3.GML --- LC3106.STY --- POST 23 1/1 86 SELECTING A JURY CH. 3 NOTE Attorney-vs. judge-conducted voir dire. There is a great debate in legal circles over whether it is better to have the judge ask questions, thereby preventing “abuses” by the attorney and saving time, or to have the attorney ask questions because he or she is in a better position to probe into potential biases likely to be relevant to the case. Empirical studies show that both premises are correct — judges are more efficient, but attorneys elicit more reliable information. Susan Jones, Judge Versus Attorney-Conducted Voir Dire: an Empirical Investigation of Juror Candor, 11 LAW & HUMAN BEHAVIOR 131 (1987); David Suggs and Bruce D. Sales, Juror Self-Disclosure in the Voir Dire: A Social Science Analysis, 56 IND. L.J. 245, 251–52 (1981). § 3.02 EXAMPLE Because it often takes two hours or more to conduct a complete voir dire examination of prospective jurors, it is not possible to include an example of an entire voir dire examination. The following abbreviated example 1 should at least give you a feel for the process: THE COURT: Ladies and gentlemen of the jury. In a few minutes we will begin the selection process for the case of Noble v. Wabash Valley Electric Company. This is a civil case in which the plaintiff seeks to recover damages for injuries alleged to have been caused through the fault of the defendant. The basic allegation is that on February 1, 2001, the plaintiff, a twelve-year-old boy, climbed a utility pole owned and maintained by the Electric Company, and came into contact with a high voltage line, resulting in serious injuries. The plaintiff claims that the defendant failed to take proper safety precautions. The defense claims contributory negli- gence — that the plaintiff’s injuries were wholly or partly the plaintiff’s own fault. The plaintiff is still underage, so the suit is being brought on his behalf by his mother, Isabel Noble. They are represented by David Durm. The defendants, at the far table, are represented by Melissa Luftig. Under our procedures, we use a six-person jury in civil cases. We will call six of you up to the jury box where you will be ques- tioned by the attorneys. Those of you who remain in the audience should listen closely to the questions also because you may be called up to take the place of one of the first six. It is very important that each of you keep your voices loud when answering questions so that we can all hear you. THE COURT: Mr. Clerk, will you call the first six jurors? THE CLERK: Please answer when your name is called and take a seat in the jury box. Christy Short. Carlos Morales. Jay Meisenhelder. 1 Some parts of this example are adapted from PHILIP B. HEYMANN & WILLIAM H. KENETY, THE MURDER TRIAL OF WILBUR JACKSON 47–66 (1975) and WARD WAGNER, ART OF ADVOCACY — JURY SELECTION §§ 4.00 to 4.45 (1981) (voir dire by James Hulverson). 0003 VERSACOMP (4.2 ) – COMPOSE2 (4.37) 07/31/02 (13:13) The Trial Process: Law, Tactics and Ethics J:\VRS\DAT\03106\3.GML --- LC3106.STY --- POST 35 § 3.02 EXAMPLE 87 Brett Nelson. Marco Molina. Gina Ross. [Whereupon all prospective jurors were duly sworn.] THE COURT: Mr. Durm, you may proceed. MR. DURM: Thank you. May it please the court and you, members of the panel. My name is David Durm, and I represent the boy who was crippled and his family. This is his mother, seated at our table. The child, Dave Noble, is not here. He will not be here through much of the trial for two reasons. First, of course, he has to be in school. Also, we decided — his parents and I — that it would be better if he did not hear all the testimony about how serious, permanent, and hopeless his condition is. Can you understand that? Would any of you hold it against him in any way because he is not here? A: (No response.) MR. DURM:Seated over there is Ms. Luftig, an attorney with Harkins, Harrell, Boyd, and Long. They represent the defendant, Wabash Electric Company. Do any of you know either myself or the defense lawyer? Do any of you know anything about or have you heard anything about the defense law firm? Mr. Meisenhelder, do you recognize the names of any of the lawyers? JUROR MEISENHELDER: No. MR. DURM: How about you, Ms. Short? JUROR SHORT: Not that I know of. Q: By the way, do you prefer being called Ms. or Mrs.? A: I prefer Ms., thank you. Q: Ms. Ross, which do you prefer? A: I know it’s unfashionable, but I’ve been called Mrs. Ross for thirty years, and I’d like to be called Mrs. Q: The plaintiff — that is, the injured person who had to bring the suit — is Dave Noble, a fourteen-year-old boy. When he was twelve, in February 2001, he climbed up an uninsulated utility pole and was electrocuted — excuse me, I don’t mean he was killed; he was crippled from a potentially lethal seven thousand volts of electricity. His parents are Pete and Isable Noble, of 3614 Sunnyside Road. Dave was attending Washington Middle School at the time. Do any of you know the Noble family? Mr. Nelson, I noticed from your questionnaire that you have a fifteen-year-old daughter. Did she go to Washington Middle School? A: No. She went to the Lakeview Christian Academy. Q: Mr. Morales, you have a twelve-year-old. Does he go to Washington? A: Yes, he does. Q: Has your son said anything about this case or about a boy from the school who was horribly injured a couple of years ago? A: No. 0004 VERSACOMP (4.2 ) – COMPOSE2 (4.37) 07/31/02 (13:13) The Trial Process: Law, Tactics and Ethics J:\VRS\DAT\03106\3.GML --- LC3106.STY --- POST 70 88 SELECTING A JURY CH. 3 Q: It would not prejudice you in any way because your son and David go to the same school, would it? A: No, of course not. Q: Does anyone else have any connections to Washington School or the Nobles? A: (No response.) Q: The defendant is Wabash Valley Electric Company. Do any of you have friends or relatives who work for the Electric Company? JUROR MORALES: I have a cousin who works for them in Martinsville. Q: How often do you see your cousin, Mr. Morales? A: I don’t. Q: What? A: I don’t see him. Q: When was the last time you saw him? A: About five years ago at a wedding.