Issue: April, 2007
Author: James H. Barrett
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Bringing Jurors into the Process Through Voir Dire
“Jury of my pears? I don’t even like pears.”
Hooper D. Crowflye, 1987
Experienced trial attorneys recognize that voir dire is unlikely to result in a panel of jurors entirely committed to the client’s case. Although most citizens enter the courtroom with bias and preconceived notions of the trial process and their role in that process, the more pragmatic goal is questioning and selection of jurors hopefully resulting in a commitment to fairness, open mindedness and an understanding of their function and role within the trial process. Standard voir dire as ordinarily conducted by counsel and the Court produces superficial results and basic information, but does little to educate jurors with regard to how they should consider what they are about to see and hear and the finality of their decision. Although it would be naïve to believe most people actually want to leave their homes and jobs to be on a jury, most do want to do a good job and arrive at a just decision. Jurors are, like anyone else on this planet, a product of their culture, education, experiences and upbringing. As lawyers and advocates, we can’t change a lifetime of experience for the juror, but we can educate them, interest them in the process and, hopefully, agree with them in their decision. At the end of the usual voir dire process we know something about the jurors, but we haven’t told them anything about the process in which they are going to participate or the differences between what they will experience in a real-life courtroom and what they have heard about at the neighborhood bar or have seen and heard on radio and television. Jurors can be educated to those differences and to the benefit of the client if done carefully and correctly.
What follows is a very brief outline of a very few of the many neglected but important opportunities to bring jurors to important understandings during voir dire.
It Doesn’t Matter What My Verdict Is Because The Scoundrel Can Always Appeal
“If I’d know’d they was going to let me go, I wouldn’t have escaped.”
Hooper D. Crowflye, 1982
Jurors believe if they make a mistake and convict an innocent defendant they don’t have to worry about it because the defendant always has a right to appeal and can depend upon a liberal, pointy-headed panel of left-leaning judges on the Supreme Court or the Court of Appeals to legislate from the bench, overturn their verdict and correct any error.
It’s important to impress upon potential jurors that this trial and their verdict is likely to stick. Attorneys know the appellate courts are not likely to overturn a jury verdict but jurors believe Appeals Courts review “everything” much like a mini-trial. Clients and client families frequently ask what evidence will be heard on appeal and what exhibits will be presented. This misconception isn’t unique and jurors should be told by the Court or counsel that this trial is a serious matter, the verdict is likely to be the end of the line for the defendant and that jury verdicts are rarely overturned. In other words, this decision is important and binding.
Whose Evidence Is It Anyway?
“I knew I couldn’t get a fair trial with all that evidence against me.”
Hooper D. Crowflye, 1978
Jurors, and many lawyers, don’t understand whose evidence is whose. As a result of television programs and news magazine stories about police, lawyers and trials, most citizens believe defense evidence is only put on after the plaintiff or prosecution has put on its witnesses. The fact is that in any trial both sides put on evidence whether or not a defendant puts on witnesses and exhibits in his own case. It isn’t unusual in a criminal case for the defense case to consist of evidence developed solely through cross examination of prosecution witnesses.
Jurors should be told that, in spite of the fact that a defendant has no obligation to present any evidence or any witnesses, evidence obtained through cross examination is defense evidence as if presented in a defendant’s case in chief. For example, if a prosecution or plaintiff’s witness testifies to facts favorable to the defense, such evidence is obviously defense evidence and jurors should be questioned and educated to this important fact. A juror who grasps this concept is more likely to pay attention to all of the evidence and testimony and less likely to ignore evidence developed during cross examination while waiting and wondering what the “defendant’s” evidence will be.
We Don’t Have Many Of These Around Here
“I ain’t going to trial, but there’s no way they can find me guilty.”
Hooper D. Crowflye, 1996
Trials are an infrequent occurrence and jurors need to know it. In criminal cases, fully 95% of criminal charges result in guilty pleas. Jurors sense that their job as a juror is important, but they don’t always understand how uncommon a jury trial is. The public frequently assumes guilt based solely on the basis of charges being filed and takes the position that the defendant “wouldn’t be there if he hasn’t done something.” Just being in court constitutes a strike against the defendant. The same may be true as to either party in a civil case, but in any event a discussion with jurors regarding the rarity of trials serves to emphasize two important points. First, the juror is participating in a rare and important ritual of public service and should take his or her responsibility seriously. Second, since the defendant in a criminal case or plaintiff in a civil case is actually going to trial when so many don’t, there must be a significant dispute as to guilt or liability and the juror should pay especially close attention to the case.
We’re A Lot Alike, You and Me.
“I was going to represent myself once, but I couldn’t defend a guy I knew had did it.”
Hooper D. Crowflye, 1984
The responsibilities and duties of jurors and defense counsel are strikingly similar. Both defense counsel and the jurors are required to closely examine the evidence presented by the opposing party. Defense counsel is skeptical of the evidence presented, questions the evidence and examines the evidence for flaws. So should the jurors.
The juror doesn’t take an oath to be seated on the jury only if he or she is lacking in life experience, devoid of common sense and incapable of critical thinking. There is nothing wrong with a juror viewing evidence through the prism of skepticism and critical thinking and nothing wrong with encouraging a juror to do so. This is referred to as the “burden of proof.” Holding the opposing party to their burden of proof doesn’t violate the juror’s oath, it complies with it. And asking a juror to closely examine the evidence at every stage of the proceeding does nothing more than ask that they do their sworn duty.
Join with the jury and invite the jury to join with you in the joint function of questioning the evidence and holding the opponent to their burden of proof at trial.
A good voir dire presents the opportunity to relate to jurors as well as educate them about the trial process. Voir dire begins the trial. Not opening statements.
James H. Barrett graduated from Creighton University School of Law in 1972 and was admitted to the Wyoming State Bar in 1973. He served as a Special Assistant Attorney General for the state of Wyoming for three years. Barrett spent 14 years in private practice with emphasis on criminal defense; 15 years as Wyoming’s first Assistant Federal Public Defender and as Wyoming Branch Chief for the Office of the Federal Public Defender for the Districts of Colorado and Wyoming. He is currently in private practice in Cheyenne with emphasis on criminal defense and appeals.
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