Friday, February 12, 2010

Jury follow-up

Now a couple of quick responses to one reader's questions about juries.

Would you please explain the reasons why, the reasons and thought process behind reason, someone is "struck" from being picked to serve on a jury?

I believe this post answers this question, mostly anyway, but if not let me know where it's deficient. The bottom line, though, is that we try and find people who will give us a fair shake.

Also, how many "strikes" does each side get and if both sides agree someone should not serve, does it count against their "strike" limit?

In felony court each sides gets ten peremptory strikes, which is a strike for any reason we want (as long as it's not based on a discriminatory reason, like race or gender). If both sides agree, which happens in most trials, then no, it won't count. Usually it's someone who is obviously unable to be fair to both sides (technical term: nutter) and so the judge strikes them "for cause," which means they are out of the pool by the time the parties disappear to their small closets to consider their peremptories.


  1. What a load of crap that you want someone who will give you "a fair shake."

    If potential juror #1 says, "I can be fair. If the evidence justifies a conviction, I will convict. I it justifies an acquittal, I'll find him not guilty. It boils down to whether the State can prove its case beyond a reasonable doubt as the law requires" AND juror #2 says, "I'm pro police, I'm a gun owner, I think we are too soft on criminals, and I think if you're guilty, you should pay the consequences" THEN you'll strike #1 over #2 every time.

    If you're going to run a blog, just be honest with us.

  2. Oh, DAC, I know you are just trying to lighten our days a little with your cheeky humour there, but there's plenty of us out there who, if being honest, would have to admit they can't be fair to both sides who are categorically NOT nutters. A murder victim's family member; someone who has a husband or father or child doing time for a crime the family doesn't believe he committed or for which they feel he got an unduly harsh sentence; someone who is, for example, married to a police officer, or is himself a law enforcement agent, and feels that yeah, they are more honest than most; etc, etc. They probably aren't in the same 'nutter' category as the venire member who complains during voir dire that the black UN helicopters have been buzzing the ranch where he keeps his stockpile.

  3. Anon @5:56: I must say, your plea for honesty ring a tad hollow when you post anonymously. :) But to the substance, you are wrong. Sure, if I could put 12 of those guys on the jury, I'd think it was Christmas. But it can't happen. The defense lawyer would make sure of that, either getting them struck for cause or using peremptories.

    Anon @4:49: I do try with the humor, thanks for noticing. However, those examples you give aren't people who would be struck by agreement. If someone says, and truly believes, he can be fair, then it's up to one side or the other to nix them with a peremptory strike.

  4. 5:56 here again.

    My point was that you don't want a "fair" juror. You want a juror that will convict. And you'll use your 10 strikes on "fair" people before you'll use them on the "conviction friendly" people.

    I'm right, aren't I?

  5. That's if the potential juror says s/he can be fair regardless of their life experiences. But if a venire member in a felony dwi pops up and says "my wife was killed by a drunk driver; i hate em; i can't be fair", both sides would agree to strike the juror and thank him for being honest for his inability to be a good juror on this particular case. Nothing is wrong with that guy; he certainly isn't a nutter. Right?

  6. Anon @5:56: I suppose in theory you are right, but in practice it doesn't work that way. We simply don't know, in the vast majority of cases, who is going to convict and who isn't. My experience is that people come into this pretty open-minded. Think about it this way: if I'm taking the case to trial, I believe two things: 1. the D is guilty, and 2. I can prove my case. If I'm right about those two things, then someone who comes to this willing to give me a fair shot is welcome on my jury.

    Other anon: correct. I was being flippant. We get more of those people than we do "nutters," so maybe I should have made that clear and been less flip. Apologies.

  7. See how useful leading questions are?

  8. In my misdemeanor trials we typically start with about 25 jurors, closely interview 16 or so, have a few strikes for cause, and then each side gets 3 strikes. After those, we take the first 6 jurors as our jury.

    To the question about jurors being fair- here's my speech that I give in voir dire. We can't all be fair in every trial. I wouldn't be fair in a medical malpractice trial due to family history. A juror who lost a family member to a drunk driver can't be fair in a DWI case. Again- I don't want him on my jury because it might get the verdict overturned.

    Lastly- most jurors take their responsibility VERY seriously and try VERY hard to do the right thing. Those are really the people I want. If I can't get that jury to convict, I probably shouldn't have taken the case to trial. In my last DWI trial I had on my jury a guy who'd been pulled over for DWI but released after the field sobriety tests, the only member of the panel who described himself as a heavy drinker, and a bartender. Each took it seriously, and I got the verdict I wanted. That seriousness is all I can ever ask for.

    To anon 5:56- I'm not going to use one of my own strikes against juror #2, but if the defense attorney moves to strike for cause, I'm not objecting too hard. There are pretty good reasons for me to NOT want that juror on my panel. First, it makes it more likely that any verdict would have grounds for appeal. Lets set this up two ways- panel #1 is 90% likely to convit with a 50% chance it will be overturned on appeal, and panel #2 is 50% likely to convict with a 10% chance it would be overturned on appeal. I'm taking panel #2 every single time. In my office I don't have any appellate lawyers. It's just me. I'm very focused about getting stuff right even when it handicaps me a bit in getting a conviction. The second issue is that a jury isn't simply 6 or 12 people voting in a vaccum. They're talking and working through the evidence together. I'd be very afraid of the juror #2 you described rubbing everyone the wrong way and solidifying the resistance of other jurors. I'm thinking about who my jury foreperson is going to be from the moment the panel sits down and I want someone who's a leader, not a dictator. Lastly, I'm never going to strike a "fair" juror. There will be more than enough jurors on the panel who are going to be unfair but I can't quite get to commit to something that will get them struck for cause. THOSE are the people I'm going to use my strikes on ("There are lots of crooked cops on our police force who will lie on the stand every chance they get to convict totally innocent people. But I can be fair...")


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