2015.35: Jury Selection Rule: Pull Back the Curtain.

 Posted on February 04, 2015 in Uncategorized

One of my proteges, working on an appeal, noticed how easily the prosecutor convinced a member of the jury panel to change his mind on an important issue with a tongue lashing. He posted about it publicly, admonishing potential jurors to be strong in jury selection and not let a prosecutor "bully them" into changing their opinions. It's a fair point, but there is a lesson for the defense lawyer as well.

Jury selection is not about getting jurors to change their minds. You're not likely to get them to change their minds in jury selection, and the prosecutor in my protege's case probably (I wasn't there) didn't really get the juror to change his mind. What she did was to get the juror to say different words than he had at first; she might be able to hold the juror to that new position during deliberations, but probably not, so if she didn't get him to say words that led to a challenge for cause she was wasting her breath.

Worse than that, when a lawyer browbeats a juror into changing his position, other jurors are not going to share their honest opinions with the lawyer for fear of being browbeaten themselves. So by being a bully, the prosecutor shuts down her own ability to get actual information from the rest of the panel.

Even worse than that, if the defense lawyer is on the ball he will get up when the prosecutor has finished talking, rehabilitate the juror, and talk with the jury about people trying to browbeat other people into changing their minds, using the prosecutor as an example.

Often an important part of the defense voir dire is to talk with the jurors about standing their ground when other people are trying to bully them into changing it: each juror's verdict is a personal moral judgment (the language of the Colorado Method of capital jury selection); a juror should not change her verdict based on pressure from others; and a juror should not pressure others to change their verdicts. It's improper, and unfair.

In most jurisdictions prosecutors go into jury selection with a halo of credibility because of their job. Jurors assume that what prosecutors do in jury selection is what is supposed to be done. They may not like it, but they figure that the prosecutor wears a white hat and is doing what she is supposed to. If the defense can remove that halo, the odds are evened considerably. (I think I've won every jury trial in which the prosecutor misstated the law in jury selection and my objection was sustained.)

When the prosecutor has demonstrated bullying behavior in voir dire, defense counsel can hold it up as an example, and the prosecutor won't have a chance to respond. The benefits to the defense of this are several: the jurors feel free to speak freely with the defense lawyer (even more than if the prosecutor had behaved better); the prosecutor's credibility is shattered; and the defense lawyer's credibility increases.

In jury selection we are not trying to change jurors' minds, but rather to win their hearts. Intellectually, at best we are going to get them to frame the game of the case in a way that favors us. Emotionally, though, we can help them trust us, like us and want to help us. By revealing to the jury panel the prosecutor's voir dire tricks (and this applies to trick questions, bullying, and other tactic of which your kindergarten teacher would not approve) the defense lawyer reveals the prosecutor as a trickster and himself as a truth-teller. It's a credibility bonanza for the defense.

If the defense lawyer is using tricks in voir dire, the prosecutor doesn't get a chance to stand up afterwards and have a conversation with the jury about it, so she doesn't get the same credibility bonanza. But juries aren't clueless, and if you treat them unfairly they are going to do the same to you.