Jury Selection


JUNE 11, 2004






SUITE 1950, LB 9




A. The Presumption of Innocence

Many times have you picked a jury and you’ve heard the judge instruct the panel that a defendant enjoys the presumption of innocence-and you see the panel nod with appreciation and approval. No comment. No dissent. The panel members indicate that they can follow the law and they can be fair to both sides. That’s it for the presumption of innocence from the court. The prosecutor then speaks to the panel and little or nothing is said about the presumption of innocence. Now it’s your turn.

It has been my experience that many members of each jury panel do not and will not truly believe that your client is innocent at the beginning of a trial. It is important to identify these prospective jurors and to get them to talk about their feelings. If you can’t get them struck for cause at least you will know who might start your client out at a distinct disadvantage.

Listen to what they say about the presumption but, as importantly, watch their body language and try to get a feel from them. These individuals are often times leaders who will be guided by their experiences and “common senseâ€? rather than the evidence and the law. That spells trouble for your client if they wind up on the jury.

You don’t want to be perceived to be overly aggressive or confrontational with the panel, so draw them out by questioning. Ask if anyone on the panel has ever been on a grand jury. If someone raises their hand, ask them how many times a defendant testified before the grand jury. Get them to admit that in the overwhelming majority of the cases presented to the grand jury, the government basically presented one side of the story. Then you can explain that in a misdemeanor context there isn’t even a grand jury available to screen the cases. It’s filed and you’re off to court. This is particularly important in the domestic violence misdemeanor cases where the case might have been filed without the defendant even having been arrested or interviewed. Wrap it up by pointing to the judge and explaining that “this judge has and will instruct you that an indictment/information is no evidence of guilt-in fact it is not evidence at all.â€?

You might then follow up by asking the panel that if they had to vote on the case right now, in jury selection, what their vote would be. You’ll be amazed how many puzzled looks you’ll receive. Why? Because many people don’t really believe in the presumption of innocence and they believe that if the case has gotten this far your client must have done something wrong or illegal. Draw them out. Get them to talk about their feelings and connect this question to the burden of proof. Show the panel how the presumption of innocence and the burden of proof are related and sufficient to acquit your client unless the government has proven its case beyond a reasonable doubt.

If the panel is overly quiet and reserved gently remind them that jury “selectionâ€? is really a process of elimination and the quiet folks are much more likely to be “selectedâ€? for the jury.

At this point you’ve probably irritated at least a few of the panel members who might feel that you’re dwelling on arcane legal technicalities, so ask one of the more hostile members of the panel the following question:

Sir, pretend that I’m with law enforcement and I knock on your door some morning and I accuse you having stolen cars the previous night at 4:00 a.m. I’m basically putting the burden on you to prove that you didn’t. Could you prove that you weren’t out stealing cars at 4:00 a.m.? You say that you were sound asleep in bed, why should I believe you? You say your wife can vouch for you, doesn’t she have a motive or bias to help you?

You want to get the entire panel thinking that it is entirely possible that an innocent person could not prove that they were in fact innocent of a criminal accusation.

And that is why we have the presumption of innocence. It is not some sort of legal technicality.

B. If the Government Crosses the Line in Voir Dire- Object

Many times during jury selection trial attorneys will allow the opposing side to ask improper questions, or make improper/misleading statements, without objecting to them. Perhaps the attorney is busy filling out her seating chart or reading the juror questionnaires, but the lawyer should not quit listening to what the other side is saying during jury selection. Failing to object during voir dire can create serious problems for your client.

I have attached two sample motions which are available on the TCDLA website which address two common problems: (1) Allowing the government to ask improper commitment questions, and (2) Allowing the government to shift the burden of proof through misconstruing the concept of reasonable doubt.

If these motions are urged prior to the beginning of jury selection, then, regardless of whether the judge rules in your favor, both the judge and the government will be on notice that you plan to vigorously defend your client during voir dire and to expect an objection if the government crosses the line in either instance.

Other objectionable practices to look for during jury selection:

*Object if the government attempts to go into punishment-related issues if you are in federal court (sentencing guidelines control) or state court if you are going to the court for punishment. Additionally, in federal court some prosecutors will suggest that the judge is somehow on the government’s side. This tack is subtle, and will usually involve some reference to the fact that the trial judge must approve plea bargain agreements and is ultimately responsible for whether a downward departure is granted. If your objection is overruled then you might want to explain to the jury that the government offers/drafts the plea agreements and that the trial judge can’t grant a 5k reduction unless the government files a motion for same. Don’t let the government imply to the panel that the judge is somehow rooting for the government.

*Object if the government attempts to publish the DOJ seal on the courtroom wall during the trial, and certainly during any portion of the defense’s case. Putting the seal on the wall during trial serves absolutely no legitimate purpose, and could send a signal to the panel that the government somehow enjoys a home field advantage. The DOJ seal looks similar to the court’s seal that generally is located over the judge’s bench.

You might point out that, although the defendant does not have a seal, you might withdraw your objection if the court allows you to publish the image of Atticus Finch on the wall during your portion of voir dire.

*If you plan to request a shuffle ask the judge to instruct the state not to suggest to the panel that the defense made the request, and ask that the judge refrain from doing same. Panel members often get frustrated when a shuffle is requested and you don’t want them to start off being upset with you or your client.

*Ask that the judge not make statements to the jury along the lines of: “ Prior to taking the bench I was a prosecutor with the DA’s office for 15 years…â€?

I must admit that I was guilty of doing this during my time on the bench and I now realize that my statement could have been interpreted by some prospective jurors that I was somehow pulling for the prosecution. If the judge balances her statement by adding that they also worked as a defense attorney, then the field remains balanced. Otherwise, consider filing a motion or making a verbal request prior to jury selection.

Remember, the government wants the jury to believe that the judge and the government are on the same team. Don’t let them do it.

You can say to the panel that the trial judge is the judge of the law and the jurors are the judges of the facts. You can remind the jury that the judge is like an umpire, calling balls and strikes, and that she will be pleased with any verdict that is supported by the law and evidence. I have yet to have a judge take exception to this observation.

I’m always trying to determine whether a prospective juror feels that “the governmentâ€? is their friend or something else. If you sense that a prospective juror feels that the government is an unqualified ally, and that prospective juror also possesses leadership/supervisory skills- beware. That juror could very well take the prosecutor up on his tacit plea that the jury trust him, instead of focusing on the law and the evidence of the case.

Finally, the next time you watch Law & Order, listen carefully to the opening sequence in which the announcer says something about “the peopleâ€? being represented by two separate and important entities: the law enforcement officers who investigate the cases and the prosecutors who pursue the bad guys. That’s not an exact quote, but you get the idea. Rest assured that during the entire trial, beginning in jury selection, the government wants the jurors to embrace that sentiment.

With all of the turmoil and violence in the world today, it’s not a difficult sell. Don’t make it easy. Be vigilant.

For more information: Judge David Finn

Phone Numbers

Office: (214) 538-6629

Office Location

4015 Main Street, Suite 100
Dallas, TX 75226
Phone: (214) 538-6629
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