SELECTING JURIES FOR CRIMNAL TRIALS. Marvin G. Lizama, Esq. Tulsa County Bar Association December 1, 2016

Transcription

1 SELECTING JURIES FOR CRIMNAL TRIALS Marvin G. Lizama, Esq. Tulsa County Bar Association December 1, 2016

2 TOP TEN LIST Take it as a given that everyone outside of playpens and judge's chambers has a prejudiced point of view. You can't remove prejudice, but you may be able to spot it in voir dire. Source Unknown.

3 Voir Dire is an Art

4 10 Know the Basics Be prepared. Be well dressed, be courteous, gracious and polite. Use plain language and aim to relate to the jurors. Know the Facts of your case thoroughly. Prepare Voir Dire Questions ahead of time.

5 9 Use a Questionnaire A questionnaire allows a prospective juror to divulge private attitudes and information. A questionnaire provides you with more information than you will obtain through oral questioning. Put sensitive questions in the questionnaire because people are more honest answering written questions. A questionnaire answer may provide you a basis for challenges for cause.

6 8 Prepare an Ideal Juror Profile and Worst Juror Profile What are the characteristics of your perfect juror? Worst Juror Select jurors who will empathize with the Defendant, defense witnesses and defense counsel.

7 8 Prepare an Ideal Juror Profile and Worst Juror Profile Ex: Middle class African American may be embarrassed by an African American Drug Dealer. A high ranking executive may want to make an example out of a broker who commits securities fraud. Religious persons should be avoided in obscenity cases. Jurors who identify strongly with Prosecution witnesses, i.e., law enforcement, should be avoided.

8 Some Experts Say: Pro Prosecution Jurors in DUI cases: Former police officers. Nurses and other medical personnel. Firefighters and paramedics. Elementary school teachers. Non drinkers. Human resource workers. Recovering alcoholics. Security guards. Insurance workers. Members of MADD or SADD. People who work in alcohol or drug recovery programs. Bitter persons. Court clerks and court personnel. Persons who are overly concerned about losing what they have in life. Drunk driving victims Source: Selecting a Favorable Jury. Attorney Education Center, James Education Center.

9 Some Experts Say: Pro Defense Jurors in DUI cases: Compassionate people. People who drink alcohol (especially beer drinkers). Smokers (most smokers tend to drink). Liberals. People in the arts. Truckers. Golfers (the 19th hole is a part of the sport). Risk takers. Single people. Anti-authoritarians. Therapists. Real estate agents. Sport fans. Construction workers Source: Selecting a Favorable Jury. Attorney Education Center, James Education Center.

10 Follow up on potential landmine answers given by jurors during State s Voir Dire. 7 Listen and Observe During the State s Voir Dire Focus on listening and watching during State s Voir Dire. Gain as much information as possible to help you generate your peremptory challenges.

11 6 Prepare Batson Challenge in Advance of Voir Dire Neither side is allowed to exercise a peremptory challenge based on the race or gender of a prospective juror. The famous Batson v. Kentucky, 476 U.S. 79 (1986) case created a three-prong process for a trial court to use to determine if there is an Equal Protection violation of the U.S. Constitution. The objecting party has the burden of proving that the race or gender neutral explanation(s) of the party exercising the peremptory is unworthy of belief.

12 6 Prepare Batson Challenge in Advance of Voir Dire First, the objecting party must make a prima facie showing to the trial court that one or more peremptory challenges exercised by opposing counsel is race or gender based. Second, when the prima facie proof requirement is satisfied by the objecting party, the burden shifts to the lawyer who exercised the questionable peremptory challenge to articulate a comprehensible race or gender neutral explanation. Third, when an explanation is proffered, the trial court has the obligation of determining whether the objecting party has carried his burden of proving purposeful discrimination.

13 5 Get Them Talking: Tell Us About Yourself You have to get jurors talking and engaged in conversation if you want to find out how they think and what are their prejudices. Must ask open ended questions that solicit narrative responses. Get other jurors to chime in on another juror s response. Make jurors feel comfortable about sharing their likes, dislikes, biases and prejudices.

14 4 Get to Know Them as Individuals Now that you got them talking, get jurors to distinguish themselves from the group by identifying their individual biases and prejudices. Always use the juror s name. Go from the general to the specific. Get jurors to use emotion in their answers. Ask jurors to visualize, i.e., how did you feel in that particular situation? Ask if questions for jurors to fill in the blank: if the Defendant does not testify, it s because.

15 3 Identify The Ones Who Are Leaning Against You Be ware of qualified answers: I will, if the judge tells me what s the law ; I would have to hear all the evidence before I could say the Defendant is not guilty ; I think so ; I guess so ; I ll try are indicative of NO. Look for friendships and connections between jurors. Usually, if you strike a juror who has formed a friendship with another juror, the other juror will be displeased and will lean against you. Try to smoke out those jurors who do not like your client because of: gender, race, ethnicity, language barrier, legal status, or based on sexual orientation.

16 2 You Must Believe in Your Case You cannot sell what you cannot buy Must learn how to believe in your case. Speak confidently about your case, your client, and the charges.

17 1 Watch It Being Done Clark Brewster Rob Nigh Allan Smallwood Richard O Carroll Bruce Edge

18 In Closing, watch?v=feanfzsueog