Criminal

Jury Selection in a Criminal Case

As of their past experiences, you’re dead in the water at the beginning which is why a lot of lawyers think that jury selection is where you win or lose a trial. The other thing you can let them know, it is a privilege to serve on a jury. Is one of the few things other than the draft we can command our citizens to do but it’s also a privilege not to serve on that jury, if it is not the right case for you and again your setting – you’re trying to set up an environment where jurors can say, “its ok”, because they all want to say is,” I can be fair and impartial”, even when they can’t. See you need to set up an environment where they can say, “This is not the right case for me”. So once – once the stage is set and I went through that kind of lengthy and I’m explaining to you why we ask the questions and what we are thinking – that whole setup if you’re concerned about time limits can be done in under 5 minutes, if you are using it – if you’re doing it efficiently.

So once you’ve got the stage set and you set up an environment where we want you to be honest – we want to talk to you. Then it’s time to dig into the issues in your case and how do you know what your issues are. You know when you… umm–when you hear a case – you have a fear list – when you first hear the facts on a case–you go like “Oh that’s not good” or “how am I going to explain that to a jury”. But I encourage you before you have cases set for trial is – get feedback from non-lawyers.

This is really important – if everyone in here has a bar card – and so –I have to tell you that – -that when you went through law school your brain was fundamentally and forever changed. You no longer think like a normal person – you think like a lawyer and that’s ok but it’s important to talk to people who are non-lawyers to get their input on it. So I always talk to my non lawyer friends, my family and I tell them the facts of the case and say, “look! I have a client charged with this, here is the general facts”, and then I ask them. “What are your concerns? What do you want to know? What additional information? What’s the first questions that you have?” And I have gotten great insight from doing that. We had a case where we were representing a police officer who’d engaged in an inappropriate sexual contact with a minor, while on duty and in his car. Bad facts! So I ran that and we were trying to figure out how the police officer thing played out. What we needed to look for in our jurors and at first I was thinking – police officers – people like police officers, that when I talked to people who were non-lawyers they said woah! That – that’s a max punishment case because that person is in a position of authority and they abused it and so we used that information going in to try to get rid of the people who were going to hold the client to a higher standard and punish him simply because of his job.

So once you have accumulated your fear list after talking to people and talking to your colleagues – you take that fear list and you start to formulate questions to address to those fears head on with your jury. I was working on a DWI case with a lawyer in Austin and it was a total refusal. Great right? We love total refusals. Those are fun to try. One problem…this is how the client refuses the test. The officer said, “Do you want to do the walk in turn? He says, “do you want to do the one leg stand” and I apologize if that offends anybody, I understand under the new harassment law – I’ve just committed a misdemeanor offense if I offended some of you more than twice. So we get to the third test and he does the same thing – he shoots the officer a finger, and the officer brightly says, “I’ll take that as a no” and places him under arrest. So she shows me this video and she is really excited about going to trial and I said –we’ve got a big problem here. I’ m worried if the jury is going to convict your client based on how he behaved with the officer and not on whether or not he was intoxicated.

So we sat down and we brainstormed and we figured out what are we afraid of here. We are afraid of jurors who are pro-law enforcement or who cannot look past the way the client behaved to look at the issue of intoxication. We need people who are ok with challenging authority. So we needed folks with that world of view and these are the questions we came up with.

We started with – some people feel it is not appropriate to disagree with a police officer or be disrespectful. Does anybody here feel that way? So we’re trying to find the pro law enforcement people there. To try to figure out the people who might be willing to challenge out authority. Has there anybody here who has gotten a traffic ticket that you disagreed on with? Almost everyone’s had that experience. And we were going to follow up with – did you feel free to disagree with the officer at the time he was writing the ticket? What would you think would’ve happened if you had? Get people thinking about the authority the officers have.

Francisco Hernandez

Author Francisco Hernandez

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