Blind Strikes and Double Strikes

 Posted on June 19,2008 in Uncategorized

Anne Reed writes at Deliberations about blind strikes:

In a "blind strike" voir dire, both sides exercise their strikes simultaneously. If you get four strikes, you strike four jurors, without knowing (until it's over) whether your opponent struck those same jurors too.

All these years I've been using blind strikes without even knowing it. In Texas state courts, as well as (as far as I recall) in the federal courts in which I've tried cases in Texas and elsewhere, blind-strike jury selection is used. It's so prevalent where I try cases that I didn't even realize there was a name for it until Anne brought it to my attention.

Anne notes what she sees as an important difference between blind-strike voir dire and alternating-strike voir dire:

[In a blind-strike jurisdiction, v]ery often, a few jurors end up on both lawyers' strike lists. Jurors who seem extreme, unpredictable, very opinionated, or just odd can easily seem too risky no matter which side you're on. With alternating strikes, you can delay some strikes you know you'd make if you had to, because you suspect your opponent might strike that juror before you do. With blind strikes, that kind of strategy is off the table; all you can do is make a list and follow it.Moreover, if you count the total strikes used in a "blind strike" trial, they don't match the number of jurors who actually leave the room after voir dire. Four strikes on each side might only really eliminate five or six jurors.

There's a term in the Texas criminal lawyer's argot for the phenomenon that Anne Describes: "double strikes." A double strike is a potential juror appearing on both lawyers' lists of peremptory strikes.

Double strikes happen, but in my experience they are fairly uncommon, at least in criminal cases in Texas state courts, in which the lawyers get to talk to the potential jurors. In a typical Texas felony jury trial, in which sixty or so prospective jurors are brought in and two experienced trial lawyers get ten peremptory strikes each, there will ordinarily be no double strikes. Sometimes there will be one double strike; there will rarely be more.

When lawyers have had an adequate opportunity to talk to jurors and there is a double strike, someone has made a mistake. Anne writes that "Jurors who seem extreme, unpredictable, very opinionated, or just odd can easily seem too risky no matter which side you're on," but part of the game of voir dire is anticipating which of the kooks the other side will strike.

As a general rule, the government is more conservative about allowing kooks on the jury than the defense. (In a bank robbery trial once, Judge Nancy Atlas asked if the defense would agree to excuse a particular potential juror. When I declined, Judge Atlas said, "she's just got so much baggage," to which I responded, "yes, but it's our kind of baggage!", forcing the government to burn a strike [more argot] on her.)

If, after both sides have talked thoroughly to the potential jurors, there is a double strike, then we know that someone has made a mistake - either stricken a favorable juror or underguessed the other side's aversion to risk. (A similar misguess can lead to a double non-strike, in which each lawyer overestimates the other side's risk-aversion and both are left scratching their heads about what to do with the screwball who's now on the jury.)

Double strikes can also result from incomplete knowledge. Where lawyers don't know much about the potential jurors as individuals, and have to rely on stereotype and instinct, they are much more likely to make mistakes that result in double strikes. So double strikes are much more common where the lawyers don't have enough time to talk to the potential jurors (appealable error in a Texas criminal trial, if properly presumed) or where an incompetent lawyer conducts the voir dire - for example, in most federal trials.