Jury Selection: A Practical Approach

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1 Jury Selection: A Practical Approach March 29, 2017 Speaker: Florina Altshiler, Esq. Russo & Toner LLP Special thanks to our generous sponsors: ERIE INSTITUTE OF LAW

2 FLORINA ALTSHILER Florina Altshiler is a litigation attorney specializing in labor law and premise liability matters. Her practice also includes medical malpractice and general negligence law. Previously, Ms. Altshiler worked as an Assistant District Attorney for the State of Alaska where she handled the prosecution of the highest-level felonies including homicides, sexual assaults and violent felonies through jury trial. She has prosecuted over twenty cases through jury verdict. Prior to working as a prosecutor, Ms. Altshiler honed her litigation skills at nationally recognized law firms in New York City for seven years. She has significant experience in the areas of complex medical malpractice, premises liability and construction accident litigation. Ms. Altshiler is the managing attorney for the firm s Buffalo, NY office. Education: J.D. from St. John s University School of Law, 2005 International Studies Certificate from Binghamton University, 2003 B.A. in Psychology from Binghamton University, 2002 Experience: Practicing attorney for over 10 years Litigated cases at the State and Federal level through trial and appeal Over 20 trials through jury verdict as first chair Arbitrator, Civil Court of the City of New York Instructor of Trial Advocacy at Columbia University in the City of New York Adjunct Professor of Trial Advocacy (criminal and civil) at St. John s School of Law Mock Trial Coach, Anchorage High School Admissions: New York State, 2006 New Jersey State, 2005 Alaska State, 2013 United States District Courts of the Southern, Eastern and Western Districts of New York Honors: Alaska State Legislature Citation Dr. Thomas C. Beneventano Award for Legal Medicine Rosenberg Scholar, St. John s School of Law Institutional Merit Scholar, St. John s School of Law 2004 CALI Excellence for the Future Award in Criminal Trial Advocacy U.S. President s Student Service Award for Outstanding Service to America United Hospital Fund s Student Achievement Award Rosefsky Language and Culture Scholar, Binghamton University Semi-Finalist, Intel National Science Talent Search Salomon Smith Barney Quality of Life Research Competition New York City Hall Commendation for Research Presentations: Erie Institute of Law CLE Presenter: Pre-Litigation Statements Qualified Privilege or Defamation? April, 2015 Erie Institute of Law CLE Presenter: Intensive (two-day) Trial College, October, 2015 Erie Institute of Law CLE Presenter: Psychology of Flawed Eyewitness Memory, December 2015 Erie Institute of Law CLE Presenter: Media Relations: Going Beyond No Comment, February 2016 WGRZ-TV: Civil Trial Analysis of the Corasanti trial Contributing writer in Law and Policy to The Public Memberships: Bar Association of Erie County National Ski Patrol North Buffalo Organization, Board Member New York Legal Assistance Group, Associate Board Member Crisis Center, Rape Crisis Counselor Languages: Russian Spanish

3 Jury Selection It is not science; it is social science. Florina Altshiler, Esq. RUSSO & TONER LLP

4 Jury Selection? Or Juror Rejection? Jury Selection is more like juror rejection. only chance to talk to jurors, instead of just talking at them. first and best opportunity to introduce yourself and your case While you are picking jurors, jurors are also beginning to form opinions about the attorneys and about the case.

5 Juror Qualification Survey

6 Those who cant talk their way out of it, remain

7 Objectives in Jury Selection 1. TRUST - Build rapport with the jurors; 2. POISON THEIR MINDS - Educate the jurors, or help them educate each other, about the issues in your case; and 3. REJECT - Find and eliminate unfavorable jurors. If you use voir dire simply to find the jurors whom you want to strike, you re missing out on building trust and also influencing their way of thinking which is part of the value of jury selection.

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9 Voir Dire finding fair and impartial jurors that will not pre-judge The questioning process of jurors is called voire dire. This is examination conducted by the judge (federal court) and/or counsel (state court). Questions are asked to find out whether any individuals on the panel have any personal interest in the case or know of any reason why they cannot render an impartial verdict (detect and eliminate bias). Other questions will determine whether any panel members have a prejudice or a feeling that might influence them in rendering a verdict (more bias). Any juror having knowledge of the case should explain this knowledge to the judge (again, bias).

10 The Dos and Don ts of Voir Dire Keep it simple. Think of the jurors as neighbors. When you talk with them, you talk in simple, everyday language. If they ask you what your trials is about, you might answer, I represent a young boy who was hurt when he fell off a merry-goround, not a plaintiff seeking to recover damages for negligence. Avoid using legalese and big words. Avoid talking about too much yourself. Introduce yourself to the jury, but don t go overboard. Remember, one of the goals of voir dire is to know who your potential jurors are; let them talk.

11 Effective Thirty Second Intro I want to know a little bit about each of you whether or not you are married; whether or not you are employed; your occupation; your hobbies; your children and their occupations. (you will have completed juror questionnaires from them to cross-reference) As an example, I will introduce myself. My name is Florina Altshiler. I have been an attorney for over a decade. I am married and live here in the City of Buffalo. My husband is a city school teacher. I enjoy skiing and travel.

12 Treat it like a Blind Date (but less awkward) Someone, thinking they might be a match, has put two parties in a room together. One party- the lawyer has some desire to be there and some idea of a desired outcome. Neither party knows much about the other. If they don t want to be there, I don t want them there. Everyone is required to serve on jury duty but not everyone is required to serve on this case. If sex crimes are personally uncomfortable, there is a contract dispute trial going on down the hall. The lawyer wants to learn about each juror (to find out if he or she is a suitable mate) while persuading him or her that the lawyer is likeable, and thus a suitable match as well. Questions about facts or about feelings? A little bit of both- either can get intrusive but since jurors decide cases on feelings, and then use facts to justify their decisions, fact questions are most useful when they are introductions or shortcuts to the feeling questions.

13 PRY, BUT DO SO TACTFULLY At cocktail parties we don t talk about religion, politics, or money. In much the same way, you need the juror s permission to delve into their private lives. People generally like to talk about themselves, when they don t think they are being judged. If a juror thinks you are genuinely interested in them as a person, they will be more willing to listen to you later as you present your case. If a juror seems uncomfortable talking about a certain topic, either leave that subject alone or ask if the juror would like to speak to the attorneys in private, outside the presence of other jurors.

14 Use the Juror s NAME Studies have shown that hearing one s name activates the brain in a way entirely different from when we hear the names of others. Carmody DP, Lewis M. Brain Activation When Hearing One s Own and Others Names. Brain Research. 2006;1116(1): Do your best to use a potential juror s name. They will appreciate the effort. When difficult to pronounce, ask them how to pronounce their name and ask if they would prefer to be called by another name (write it down; i.e. Floor-e-na)

15 Ask & Listen Establish a dialogue. In voir dire you are visiting with the jury to learn about their attitudes, experiences, and potential prejudices. You will learn a great deal more from open-ended questions than from head-nodding questions. Call on specific individuals, don t just ask the pool and wait for volunteers Then, remember to listen to the responses. If a juror says something that sounds problematic, use the response to educate the other jurors. As you establish a rapport with the jury, try to use examples to explain your theory of the case and the concepts involved in the case.

16 Things to Avoid Avoid embarrassing the jurors. Treat the jurors with dignity and respect. For example, if you are involved in a case that will concern alcohol problems, address that issue with the prospective jurors. Ask them whether any of them or any members of their families have ever had a history of alcoholism. One approach would be to ask the judge to ask these questions directly of the prospective jurors. Ask the judge to tell the jurors that they can approach the bench if they wish to discuss the matter outside the hearing of the rest of the panel. If the judge won t ask these questions, let the jury know that you are not asking the questions to embarrass anyone, but are asking the questions because it is your duty to make sure the jurors can be impartial.

17 Forget the Legalese If a non-lawyer approached you at a cocktail party to tell you the story about how their teenager was injured in a high school hockey game, you wouldn t start talking about the assumption of risk, would you? Ask other questions that would get you to the same conclusion. There are always ways to get at the information you need without using the specific legal terms. If using legal terms, define them.

18 You are a professional act like one! Always be civil and professional. Don t belittle your opponent. If you act unprofessionally, the jurors will lose their respect for you and may hold it against your client. Be well groomed and professional. If it is in your nature to be very flamboyant, temper it, or you may lose the jury. Cowboy boots yay or nay?

19 The Judge Know your judge. For voir dire, it is crucial that you know ahead of time how far the judge will permit you to get into the facts of your case. If the judge limits your inquiry, then stay within those limits. If not judge supervised, more room for abuse, hold the other attorney accountable, don t be afraid to tell the other attorney to step outside Be ready with the phone number to call the judge or his/her law clerk and/or know where to walk to get them in person

20 Remember your client Try to humanize your client. Have the prospective jurors take a good look at your client. At the beginning of a trial, I usually introduce all of the parties and their attorneys and inquire if any of them knows or recognizes anyone else in the courtroom. Be prepared for the answers!!!! how do you recognize...?

21 For example... My client s name is Jane Smith. Ms. Smith, please stand up. Now do any of you, simply by looking at Ms. Smith, already believe that she shouldn t win this case? Does she remind you of anyone? Can you give Ms. Smith her day in court? Will you hold it against Ms. Smith that she is bringing this lawsuit as a way of resolving this dispute? You may sit down, Ms. Smith. By taking this simple approach, you will humanize your client, even if the client is a corporation. Let the jurors see the representatives as the people who are affected by the case.

22 Gaining Credibility with the Jury Divulge your weaknesses or the problems with your case. Lawyers who bring out the weaknesses of their case during voir dire, and talk about those problems in their own way, have a better chance to diffuse the problems at that time. Lawyers who do this gain credibility for being up-front with the jury. It also avoids letting opposing counsel take shots are your case by exposing key problems. In your closing argument, you can bring it back to promises they made during jury selection.

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24 Success in Jury Selection Success in jury selection relies on your interpersonal skills your ability to stand in front of a group of people and make them like you, trust you, and share personal information with you. Relish the fact that jury selection, especially with a time limit, is not science, and realize that a social nature gives you a head start on connecting with jurors. There are woefully few absolutes when it comes to selecting juries, but you can do a few things to maximize your time and make the selection process slightly less random.

25 Success in Jury Selection Cont. Learn acceptable shortcuts Make educated guesses Develop gut instincts about jurors Do NOT strike jurors for inappropriate reasons. Attorneys are not allowed to exclude jurors solely based on race, religion, ethnicity, or gender.

26 Batson Challenge Batson v. Kentucky, 476 U.S. 79 (1986) United States Supreme Court ruled that a prosecutor's use of peremptory challenge in a criminal case the dismissal of jurors without stating a valid cause for doing so may not be used to exclude jurors based solely on their race. The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. The case gave rise to the term Batson challenge, an objection to a peremptory challenge based on the standard established by the Supreme Court's decision in this case. Subsequent jurisprudence has resulted in the extension of Batson to civil cases (Edmonson v. Leesville Concrete Company, 1991) and cases where jurors are excluded on the basis of sex (J.E.B. v. Alabama ex rel. T.B., 1994).

27 U.S. v. Blaylock 8 th Circuit Court of Appeals, 2005 An attempt to extend Batson to cover challenges based on sexual orientation failed in The Eighth Circuit Court of Appeals rejected a defendant's criminal appeal in U.S. v. Blaylock, 421 F.3d 758, because it found the prosecution had "offered legitimate nondiscriminatory reasons for striking the panel member". The court did not consider whether the Batson challenge rule applied, but its opinion expressed doubt that it did.

28 You re trying out for them too Voir dire is a two-way street. As the lawyers are evaluating potential jurors, jurors are also making their initial judgments about the attorneys competence and fairness. Everything you do in front of the panel must be even-handed and must appear fair. Jurors require absolute confidence that you will present your case honestly and that every word that comes from your mouth is true.

29 Appearances As you are making assumptions about the prospective juror s appearances, they are doing the same with you. Small details: shined shoes, matching belt, jewelry, hair, fingernails, watch, etc. When you stand before the jury, you want them to focus on your case and what you have to say not your clothes. Prepare ahead of time.

30 You didn t leave outlines when you left law school As I prepare to cover the relevant legal topics, I consider a number of open-ended hypothetical questions to bounce around the panel to stimulate discussion. NO SCRIPTS!!! Working from an outline provides more freedom to address the specific issues raised by the panel. Create an atmosphere conducive to free discussion.

31 Consider basis for challenging jurors for cause. Jury selection = juror exclusion Exclude people quickly and move on Remember that when challenging jurors you are no longer gathering information; you are making a detailed record as fast as possible to justify the exclusion and move on the next topic or juror.

32 Adjust Expectations How much time did the judge allot for jury selection? Jurors predisposed not to like you will continue not to like you. Jurors with a bone to pick with the system will not be swayed by the majesty of your courtroom presence. Erase any delusions that it is possible to change a panelist s deeply held beliefs during voir dire. Jury selection is your opportunity to identify and get rid of problematic jurors, not win their hearts and minds. Do not fall into the trap of arguing with jurors in a pointless effort to change their opinions, and do not worry that what a venire member says aloud will somehow poison the rest of the panel (although, sometimes, they do) When a juror confronts you with a hostile position, thank him because he is doing you a favor. A confrontational juror exposes not only his bias but also the bias of anyone who nodes her head in agreement. Get rid of them and move on!

33 Scour the Juror Cards/Questionnaires These cards provided minimal information about the people you have insufficient time to get to know. Do not panic. Depending on the jurisdiction, you should be provided with the juror s name, age, address, occupation and length of employment, spouse s name and occupation, the number and ages of any children, whether the juror has any prior jury experience, and involvement, if any, in prior criminal proceedings. See Handouts w/ sample questionnaires for Federal and State Court This information should at least speed up the getting-to-know-the-panel process. Bring a highlighter Transfer important info to your jury seating chart i.e. Alt-she-ler, Flor-e-na F/W/attny/ex-DA/Alaska/ski

34 Things to look for Look for signs of stability and jurors who have a stake in the community. Length of time employed at the same job or married to same person are good signs. Jurors who have invested in a house or have children attending local public schools are more likely to take to heart the quality-of-life issues.

35 Attorneys Beware Remember that jurors do not check their self-interests and attitudes at the courthouse door when they arrive for jury service. A jury s receptiveness to a particular case depends on the extent to which the facts and desired outcome are compatible with their collective belief system. Never underestimate the human factor in jury selection. Learn as much as you possible can about the communities and neighborhoods in your jurisdiction you will be provided with jurors home neighborhoods. People tend to adopt the collective attitudes of their communities. For example, police are perceived differently in various parts of town and to some extent, so are perpetrators. Getting to know a little bit about where jurors live tells you a little about how they live and what issues and challenges they bring to jury service.

36 Observe the Jurors When the panel enters the courtroom to be seated, stop what you are doing, respectfully stand, and watch everything the members of the panel do. Pay attention to how jurors interact with each other as these relationships will continue through the week, and you need people who can work together in groups. Observe what jurors carry in their hands and how they are dressed. Jurors often bring reading material, which is insight to their personalities.

37 Radical dress, hairstyles, piercings, and tattoos are signs that a person prides himself on being different and setting himself apart from the group in other words, someone who could hang the jury. Prosecutors have the responsibility to seek out jurors capable of collective, cooperative action and give them appropriate facts on which to act. Observations about prospective jurors social skills can be telling and should not be overlooked.

38 Questioning the Panel Do not go straight down the rows asking the jurors to recite. Remember in law school when your professors did that? You zoned out when you knew it was not your time to recite. Jurors will do the same thing if you let them. Bounce your questions around the room and understand that you do not need to spend the same amount of time with each juror. It is unnecessary to address every member of the panel as only the first 16 or 17 have a realistic chance to serve. Read their questionnaires and form basic opinions about their desirability as jurors. Now is the time to prioritize how your time will be spent and on whom.

39 SO Put away the podium Put away the notepad Use open and inviting body language. The potential jurors should do most of the talking, not you. Reward open and honest jurors with positive verbal and non-verbal feedback. Thank you, Mr. Smith, for sharing that so honestly. Ms. Johnson, what do you think about what Mr. Smith just said?

40 How to Ask Treat your conversation with potential jurors as you would when meeting anyone else in a social or business situation. Do you interrogate people you meet at a cocktail party? Hopefully not. If a juror feels that you are interrogating him or her, you are unlikely to build a rapport necessary to encourage them to agree with your side of the case.

41 Keep Asking Questions With some jurors, you will feel comfortable but need to ask a couple questions to justify your confidence. On the other extreme, some jurors will just rub you the wrong way. Loop back, returning to each of these jurors when seeking challenges for cause. Return to jurors again and again until you either change your opinion of them or make a record justifying their exclusion.

42 Ask Open-ended Questions Jurors must be engaged, and the best way to do that is to involve them in an interesting discussion. Ask open-ended questions that encourage complete, well-reasoned responses. Get jurors talking early in the process, then become part of the discussion. Use this process to frequently involve jurors with whom you are uncomfortable. Ask provocative, open-ended questions that require more than one-word answers. Remember: You are teaching, yes, but your main goal is gathering information. Telling jurors the law is much less effective than having them verbalize the rationale surrounding the law. Use hypos!

43 What to Ask You will not likely get a straight answer if you ask Do you think you can be impartial in this case? A better practice is to ask questions that will get the jurors life experiences: Ask them what their job is, if they own their own business, what do their spouse and children do for a living? Are they a member of any clubs? Unions?

44 Other things to Ask Do you believe in the law and see the value in its enforcement? Have you ever been treated unfairly by a police officer? Tell me about that experience. Has anyone here had a similar experience they feel comfortable sharing? What about you, Mr. Smith? How do you feel about law enforcement? Have you ever had any experiences, positive or negative, with law enforcement?

45 Once you identify the opinion of one juror, it s simple to ask How many of you feel that way? or How many of you disagree with Mr. Smith? This starts a conversation that can involve most jurors and will give you a good basis to begin to ask more involved questions.

46 Narrow the Focus Discuss the relevant issues to be contested in the case. A prepared attorney knows her case facts and anticipates defenses. If you are trying a DWI case and the defendant was initially stopped for speeding, do not waste time discussing uncontested issues (i.e. justification for the stop).

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48 Challenges Parties on either side may ask that a member of the panel be excused or exempted from service on a particular jury. These are called challenges. A person may be challenged for cause if, questioning shows he or she might be prejudiced. If the cause raised in the challenge is sufficient, the judge will excuse the individual from the panel. There is no limit to the number of challenges for cause which either party may make.

49 Be Prepared Make the most intelligent choices you can, and live with them. Do not get paralysis through over-analysis. You will usually have the opportunity to speak with the panel after the trial; use it to evaluate your decision-making and improve your jury selection at the next trial.

50 NY State Criminal Procedure Trial jury; peremptory challenge of an individual juror. 1. A peremptory challenge is an objection to a prospective juror for which no reason need be assigned. Upon any peremptory challenge, the court must exclude the person challenged from service. 2. Each party must be allowed the following number of peremptory challenges: (a) Class A felony = (b) Class B or C felony = (c) All others = When two or more defendants are tried jointly, the number of peremptory challenges prescribed in subdivision two is not multiplied by the number of defendants, but such defendants are to be treated as a single party. In any such case, a peremptory challenge by one or more defendants must be allowed if a majority of the defendants join in such challenge. Otherwise, it must be disallowed.

51 Federal Criminal Cases Rule 24 Fed Rules of Criminal Procedure Peremptory Challenges. Each side is entitled to the number of peremptory challenges to prospective jurors specified below. The court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly. (1) Capital Case. Each side has 20 peremptory challenges when the government seeks the death penalty. (2) Other Felony Case. The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year. (3) Misdemeanor Case. Each side has 3 peremptory challenges when the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both.

52 Make Challenges for Cause To conduct an effective and efficient voir dire, you must know why and how jurors can be challenged for cause. New York Criminal Procedure Law Trial jury; challenge for cause of an individual juror - sets out the reasons that a juror can be challenged, but only a few scenarios occur with any frequency. Jurors may be excluded if they have a bias or prejudice for or against the defendant or if they have established in their minds a conclusion about his guilt or innocence. Additionally, a juror may be excluded if he has a bias or prejudice against any phase of the law upon which the State is entitled to rely.

53 Challenges for Cause Cont. Always look for people who will raise your burden of proof ( I need to be absolutely certain to convict ), which is an automatic challenge for cause your judge should understand. Jurors may be challenged if they require more than proof beyond a reasonable doubt or if they require 100-percent certainty or proof beyond all doubt. Panelists may also be challenged if they require an element of proof beyond that required by law (i.e., jurors who wouldn t convict without a breath test, more than one witness, or an eyewitness, surveillance video).

54 Challenges for Cause Cont. A juror s bias or prejudice is established when a prospective juror is unwilling to consider and apply the relevant law. A bias exists when a juror s beliefs or opinions prevent or substantially impair his/her performance of duties. To justify a prospective juror s exclusion, it is not enough to show the existence of a bias or prejudice. It is further necessary to develop that the juror has been shown proof beyond a reasonable doubt of every element necessary to be proven and that his bias or prejudice is an impediment to following the law.

55 Example of Juror Bias Example: a juror will not convict if there is no DNA. Sir, If I prove to you, beyond a reasonable doubt, that that the defendant committed the crime charged, but I do so without DNA, would you convict? Mr. Juror, you indicated that you would require me to introduce evidence of a DNA test before you could consider convicting someone of Rape. Do you understand that the law does not require me to show that there was a DNA test? So even if I prove to you beyond a reasonable doubt that the defendant committed rape, you will still require me to produce evidence of a DNA test? Even if the defendant admits that he had sex with the victim?

56 Other Types of Juror Bias A potential juror who clearly expresses bias against a phase of the law is immediately challengeable for-cause and need not be presented for rehabilitation. If a juror equivocates, then both sides get the opportunity to make a record. Either party may challenge a prospective juror regarding a bias against any phase of the law upon which either party may rely during the trial. Therefore, the State may challenge a prospective juror for his bias on an issue of law even if the bias would not harm the State. A juror may also be disqualified if a personal experience would prevent her from being fair. This challenge is also predicated on the juror believing all of the necessary elements were proven beyond a reasonable doubt, so make a complete record. The challenging party must demonstrate that the prospective juror could not act fairly as a juror even when confronted with proof beyond a reasonable doubt because of a prior experience. Once this is established, the person should be discharged for cause.

57 Other Grounds for Challenge Punishment is also a fertile area for challenges, as jurors must be able to follow the entire law. Jurors must decide guilt without consideration for penalty or punishment. If a juror is concerned about the potential sentence, they may be challenged for cause. READ the JURY INSTRUCTIONS before starting jury selection. If a juror will not follow any one of the instructions, they can be excused for cause.

58 What it really means to consider full exposure in a civil case Plaintiffs attorneys should tell the panel that considering the full range of damages is simply keeping an open mind and waiting to decide damages until the end of all of the evidence. If however, there is someone that unequivocally says that there is a number, without hearing the evidence, that is too high (i.e. $1 million, $1 billion, $10 billion), they can be excused for cause.

59 Peremptory Challenges limited number of challenges Do not need to be supported by any reason at all A party may not use such a challenge in a way that discriminates on the basis of race, ethnicity, or gender. i.e., Preemptory challenges do not require cause Each side usually has a predetermined number of peremptory challenges depending on the charge

60 Local Rules Western District of NY The Judge in a civil case shall examine prospective jurors on voir dire. Counsel may submit proposed questions in writing to the Judge or Magistrate Judge prior to or during the examination. The Judge or Magistrate Judge, in their discretion, may permit counsel to submit questions orally or conduct voir dire. Where a jury trial has been properly demanded, the Court shall determine whether the jury will be selected by the panel method or the struck method.

61 Panel Method The deputy will at random, call names from the available panel and direct those persons to be seated in the jury box in the order in which they are called. The total number to be seated shall be determined by the Court. The Court will conduct voir dire, or counsel if permitted. The Court will excuse any prospective jurors for cause where appropriate, acting either sua sponte or upon application of a party, and replace them with new prospective jurors. When the Court has determined that none of the prospective jurors in the jury box should be dismissed for cause, the parties may exercise their peremptory challenges.

62 Challenges in Federal Civil Cases Each side in a civil case may exercise or waive three (3) peremptory challenges, pursuant to 28 U.S.C These challenges shall be exercised in three rounds, one challenge for each side in each round. If the challenge is not exercised during that round, it is considered waived. After all parties have exercised all of their challenges, the jury shall be sworn.

63 Once challenges have been exercised After each round of challenges is exercised, the Clerk of Court shall call names from the panel to replace the challenged jurors. After new jurors are seated the procedure shall be repeated. At any time before the panel is sworn, a party may exercise a challenge as to any juror seated in the box.

64 The Struck Method The Struck Method differs from the Panel Method, only in that, no further jurors will be called to replace those jurors excused by the peremptory challenges. The basic principle of the Struck method is that there is only one round of peremptory challenges exercised. Peremptory challenges are exercised only after the full number of persons needed for the jury, alternates and peremptory challenges generally 16 have survived all consent and cause challenge It is necessary to have 16 cause-free jurors in order to account for a 6-person jury - 3 peremptory challenges for each side, 2 alternate jurors and 1 peremptory challenge for each side for the alternates

65 Cases of Multiple Defendants or Plaintiffs In a case with multiple defendants or plaintiffs, the attorneys for each shall confer and jointly exercise their peremptory challenges. No additional peremptory challenges shall be provided solely because the case involves more than one defendant or plaintiff.

66 Challenges Consent of Parties An objection to the qualifications of a juror must be made by a challenge unless the parties stipulate to excuse him. Unlike peremptory challenges, there is no limit on the number of jurors that may be excused by counsel on consent.

67 Peremptory Challenges in Civil Cases 3+1 Plaintiffs collectively have three peremptory challenges plus one peremptory challenge for each two alternates. Defendants collectively (other than third party defendants) also have three peremptory challenges plus one for each two alternates. The Court, before examining of jurors, may grant an equal number of additional peremptory challenges to both sides. Where a side has two or more parties, the court may allocate that side s total peremptory challenges among those parties.

68 Exercising Peremptory Challenges Peremptory challenges are exercised outside of the presence of the panel, or against a list or ballot, so that jurors remain unaware of which side is excusing which jurors. Exercise of peremptory challenges alternates one at a time between the parties. Check social media re perspective jurors. Do NOT friend perspective jurors on social media.

69 Challenges for Cause The court must hear and decide whether to grant or deny challenges for cause. The judge, or a JHO where counsel have consented, has broad discretion to excuse a juror whom the judge or JHO concludes is unable to fulfill the duties of a juror.

70 Juror Questionnaires In every county, the Commissioner of Jurors provides a standard background questionnaire (UCS-140) to be completed by all prospective jurors and used by counsel as a tool to facilitate voir dire. The questionnaire has an original and three copies, allowing one copy each to be used by the judge, plaintiff(s) and defendant(s) and the juror. With the court s approval, the parties may use an additional questionnaire that addresses concerns unique to a specific case.

71 Jury Verdicts In New York State, a civil verdict can be reached by five out of six members (5/6) of the jury. NYS Criminal Cases - Must be unanimous CPLR 4113(a) Article NY Criminal Procedure Law Sometimes, after much deliberation, the jurors report that they cannot agree on a verdict = hung jury. If that happens, the judge declares a mistrial and the prosecutor will then decide whether or not to seek another trial.

72 Florina Altshiler, Esq. Managing Attorney 12 Fountain Plaza, Suite 600 Buffalo NY Tel: (716) RUSSO & TONER LLP

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