Criminal

Challenging Jurors in a Criminal Case

In terms of establishing the challenge;

You’re going to start off by starting the cause question. Ask the specific juror of how they feel and why they feel – and if they don’t – and if they don’t admit to the bias –that’s fine – move on to another juror – eventually someone’s going to give it to you. So all you need is one person to embrace – the bias – one juror to say – I don’t believe that children would lie under oath about as something as serious as this. Great! Sounds like you feel very strongly about that – yes I do – who here agrees with that statement and you get your second chair to write down the numbers – of all those people and then you go back through them and get an individual statement from them. And the reason why you want to do that is because that there are some judges that are not going to let you bring up all the ‘I agree with that people’ – unless they said something specific.

So you need that statement – once you’re going to establish that challenge and it’s going to be important in rehabilitation. So, you want to have a statement from them in your notes – so when you get up there – and the judges saying, “if I give you the law you can follow law right”, and the juror says, “yes I can follow the law”. You can turn to your notes and say, “I have it here in my notes that you said earlier ’’ X’’ and that you felt very strongly about it”.
Acknowledge the situation;

That poor Juror is in and you can say, “I am — I understand that this is very intimidating”, and if the judge is telling you that you have to follow the law — but only you know in your heart of hearts whether or not you really can do that and so what I need to know from you is how you really feel about this and whether or not you can really put that aside or if that’s how you feel. But that’s how you feel that’s fine. So you can get people back that you have got to have these specific statements from them and in order to be able to do that.
In Terms of locking in challenges;

When you when you get them elevated enough then you want to make sure you lock them in and this is the litany, you can go through. I see you feel strongly about this this is in the opinion you had had before you walked in to this court room today. It’s pretty strong. It sounds like it is going to factor into your verdict in this case and there is nothing that the prosecutor or the judge could say that would change your mind. If you can get yes on that question then you are golden when you get to rehabilitation.

Terms of keeping track of challenges;

You need to have a great second chair. I am a pretty good second chair. I take a lot of notes but in terms of keeping track of it, we mentioned having the specific statements, and how you do the efficiently because you know the Jurors are talking pretty fast. They are trying to get everything down. We use cause sheets and this didn’t translate very well but there is a word document of it, that’s gone be part of your supplement materials so the way the cause sheet works is that the letter parts the ABC through H, you listed the challenges for cause that you anticipate so if you know police officer testimony is going to be an issue, child credibility, defendant’s failure not testify, type of case, they dis-qualified on, you write those down, and when the Juror admits that bias you can put the letter next to their numbers. And some of the Juror will have multiple letters by the time the process is done.

The reason why this is important is that when you get up to the bench the Judge is going to say, “what Jurors do you want to bring up and talk to?”, in that way you got the numbers and you got the reason. So you can say I need this 1, 5, 7 and 9. Judge this is the type of case they cannot be fair in child’s sexual assault and if you need me to, I can give you the specific statement that they said that makes me think that. So this a good organizing tool — just that you do not have to thunder you notes up there and try to figure out who want to challenge you have it at one place.

Commitment Questions;

There is a lot of law in Commitment questions; I don’t want really like to object to them because frankly I don’t want to hear the answers. So but just so you know what they are legally the case on this stand differ. A Commitment question is a question that commits a Juror to basically deciding the case to one way or another, based on a specific fact. And stand differ the question that was deemed in proper was the following, would you presume a person guilty, solely on the fact that they refused a breath test. The court of common said that this was an improper commitment question. Now that being said all commitment questions are improper. They are proper if they lead to a valid challenge of cause. So these are the following commitment Questions that were okay to ask, some of them.

Whether a juror could follow a law that required them to disregard illegally obtained evidence. That is your 38-23 if you are running that theory whether they can follow an instruction requiring corroboration of accomplice testimony. Whether or not they can fairly consider – whether or not they can fairly consider the full range of punishment and by fairly consider I mean, think about it more like a min like you can fairly consider it.

Whether a potential Juror would automatically disbelieve a witness who was convicted felon and whether they can follow the “one witness rule”. I include this one not because you are going to be asking it but the prosecutor would be asking it. So when you hear it – that’s a commitment question that would be permitted on their side.

Francisco Hernandez

Author Francisco Hernandez

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