The best criminal defense attorneys, the ones who are really trying cases, know this to be true: Jury selection is the most important part of a trial. You can have the strongest case in the world, but if you don’t have the right audience who is open to hearing your message, forget it. Think of the world of pet ownership, and people that self-identify as “cat” people vs. “dog” people. One group can never convince the other that theirs is a superior pet, their world view simply won’t allow it. Jury selection is similar; if your case calls for “cat” people, you want all the “dog” people off your jury.
The idea that jurors are selected is a misnomer. From an attorney’s point of view, it is really about de-selecting those people that you believe won’t be a fit for your case. This can be a very complex process, and involves not just the 12 people that are being actively questioned in the jury box, but also keeping an eye on those that are “on deck.”
Among panels of perspective jurors, there are usually three distinct groups:
- Those that really do NOT want to be there;
- Those that really want to be there way too much (because they have an agenda); and
- Those that are committed to being fair and honest.
The first two groups are the ones that need to be de-selected out during the process, unless there is a tactical reason to keep them (like to promote a hung jury).
Speaking of hung juries, in a criminal case, in order to prevail, the prosecutor must have a unanimous verdict, meaning all 12 jurors voting guilty. A win for the defense is obviously all 12 voting “not guilty”, but it is also any numerical division. A divided jury (whether 11-1, 10-2, 7-5, whatever) is a hung jury and a mistrial, or what kids call a “do-over.” Sometimes defense lawyers pick jurors that they believe will be likely to disagree with one another to promote this. Normally lawyers are kicked off of juries because it is believed they will be too powerful in the jury room. I had a case where we kept two lawyers on the jury: one was a ponytail-wearing ACLU lawyer, and the other was a very conservative corporate type. We predicted they would be at odds at every turn. We were right.
Jurors are asked to do an incredibly difficult task. We gather together a bunch of people, usually weed out the ones with any kind of legal training, throw so much evidence and law at them it’s like trying to take a sip from a fire hose, and then if they have a question, the typical answer they get from the judge is that “it’s in the jury instructions, go re-read them and figure it out.” For those charged with a crime, this level of complexity may appear daunting, but a skilled criminal defense attorney, one who truly understands the process, will find a way to use it to your advantage.
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Darren is an accomplished TV personality, attorney, interventionist, keynote speaker, and 'misbehavior expert' who appears constantly on countless TV and radio shows.