I've always been amazed by clients who end up going to trial. I am not sure I could imagine a more terrifying thing than having 12 strangers determine the course of my life. In some cases, it's not as huge of an impact as others, although it always has an impact. But the cases where a conviction means prison time are the cases I am always amazed when clients go to trial.
Ok real talk: if I were charged with a crime that I was 100% innocent of, but I was facing prison time, I'd take a plea deal without a second thought if it meant no prison time. I'd confess to a crime in open court & lie through my teeth under oath to enter my guilty plea if it meant I could avoid going to prison. I know that's not what people want to hear, but it's true. And it's not an uncommon opinion among lawyers I know who work in the criminal justice system, especially defense. Too many things can go wrong at a trial, the judge can allow evidence in that your attorney wants out or not allow evidence in that your attorney needs in, witnesses can say different things on the stand than they did in previous interviews, etc. There are too many variables. I would never take the risk.
The idea of 12 strangers deciding my life is the most frightening thing ever. I'd have no control over my own life. I couldn't deal with that.
Picking a jury is the most important part of a trial. It's also the part that gets the shortest shrift. It doesn't matter how spectacular of a case you put on or how great your cross exam is or how compelling your closing argument is if you have the wrong jury. And given how frequently this part of trial gets rushed through, it makes me even more convinced I'd never go to trial if I were a defendant.
Jury selection gets glossed over for a number of reasons. It's uncomfortable for most people, whether the potential juror or the lawyer. You are either asking strangers questions, sometimes extremely personal ones, or you are answering questions a total strangers is asking you. It's hard to get people to really talk about things because most people have never been questioned like they are in jury selection, so they treat it like a quiz, where they have to give the "right" answer. They can usually tell what answer is the "correct" one & they want to be cooperative & give the right answers, so you'll often end up with a Q & A that sounds like this:
Q: What are your thoughts about handguns?
A: I hate them. No one should own one. It's unnecessary.
Q: What do you think about a person who owns a handgun?
A: They are probably paranoid or think everyone is out to get them, so they think they need a gun.
Q: So is it fair to say you have a negative opinion about a person who owns a handgun.
A: Yes, that's fair.
Q: And if you were to find out during this trial that the defendant/a witness owned a handgun, would that cause you to have negative feelings towards that person?
A: Probably yes.
Q: Would those feelings affect your ability to be fair & impartial to both sides?
A: Possibly.
Q: Okay. How so?
A: I would probably be more skeptical of what they have to say. I might not believe them as much.
Q: If the judge told you that you had to put those negative feelings aside & not consider them when reviewing evidence in this case, do you think you could do that?
A: Yes.
Q: Any doubt about your ability to set aside those feelings?
A: None whatsoever.
Q: Could you be completely fair & impartial to both sides, despite your feelings about handguns?
A: Yes. 100%.
Like, how realistic is it that anyone would be able to totally disregard their internal feelings about someone or something? It's not. Only in court do we expect that of people. But whatever, that's the way it is. What the bigger concern is that in that example, the person starts out with a really clear opinion on something but then walks it back because they start to realize it's not the "right" answer. And that makes it difficult to know what they really think. Plus, no one wants to say they can't do something, like setting aside their opinions. (One judge I know of asks a way better question. Rather than asking if the juror can set aside the thoughts they have, the judge asks, "Is it reasonable for us to expect you to ignore those thoughts & feelings if you're a juror in this case?" I like that way better).
The main reason I think jury selection gets glossed over is that most everyone in the courtroom wants it to go quickly. An hour to an hour & a half, tops, unless there's an unusual reason for it to take longer. Judges are especially concerned with the time it takes because they worry about the jurors sitting around.
In Minnesota, for most felony cases, between 30-40 people get called in for jury duty. Then they are put in order randomly, from 1-40. Most felony trials need 13 jurors, 12 who will actually decide the case & one alternate. Lawyers don't actually pick who they want on the jury, they pick who they don't want, by using peremptory strikes. The state gets 3, the defense gets 5. After those strikes, whoever is left is the jury.
After the random order is decided, the clerk calls out the first 21 names on the list & those folks are seated in the jury box & asked questions. 21 is the number because 12 jurors + 1 alternate + 3 state strikes + 5 defense strikes = 21. The remaining 9-11 jurors who aren't in the first 21 just sit in the courtroom & listen.
If someone in the first 21 had to be removed for cause, meaning they have something that prevents them from being a juror on the case like they are close friends with a witness or they are related to the prosecutor, then the 22 person would take their place. Then 23, 24, etc. So if you're 40, you probably aren't going to end up in the jury box getting questioned. You'll probably just sit there for the whole thing until a jury is picked & then you get sent home. And you'll get a measly $10 per diem for having had to be there & miss work & arrange childcare, etc. So it sucks, basically. It's boring & it sucks. Which is why judges are concerned about keeping jurors waiting.
But on the other hand, if I were a defendant, I'd want to talk to these people at length. They are going to decide my life. I would want to know as much about them as possible. If these people are in charge of determining my fate, I want to thoroughly vet them. I'd want to take as much time as possible with each one of them & know everything I could about how they think. If it took only an hour for my jury to get picked, I'd be freaking out.
I try to remember that it's likely unnerving for a defendant to know that those strangers are going to determine the course of their life. I try not to overlook the importance of picking a jury. I try to remember that my clients are much braver than I am because I'd plead guilty to a crime I didn't commit if it meant no prison time instead of risking it at trial.
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