by Elliott Wilcox
When you're picking a jury, you want to strike the jurors who are biased against your case and keep the jurors who favor your case. But how can identify the jurors that you want to keep? An essential jury selection skill to master is the ability to see look past opinionated jurors (without alienating them) and identify the jurors who secretly agree or disagree with the opinionated juror, so that you can exercise your peremptory strikes more intelligently. In this article, you'll learn how to identify the jurors who favor your case during voir dire with a simple jury selection tip.
Every day, lawyers blatantly lie to potential jurors during jury selection.
In courtrooms across the country, they repeat the exact same lie. You’ve probably heard this lie repeated in open court, and there’s a good chance you’ve said it yourself. So what is this oft-repeated lie?
“Ladies and gentlemen, we’re looking for a fair and impartial jury.”
Bull. No lawyer in his right mind wants a “fair and impartial” jury. You want the most biased jurors possible — just so long as that bias goes in your favor. You know that if you can select a jury that’s receptive to your client’s case, the battle is half-over. That’s why jury selection can be one of the most important elements of your entire trial.
The two important goals of jury selection are picking jurors who will favor your client, and eliminating the jurors who will favor your opponent. But how do you identify those two classes of jurors?
As you’ve heard me say before, it’s essential to get the jury panel talking if you want to discover what attitudes, beliefs, and life experiences they’ll bring into the jury deliberation room.
But sometimes, jurors talk too much.
For example, let’s say you’re the prosecutor in a DUI case and one of the potential jurors says, “I hate what you’re trying to do here today, and I’ll never agree with you. I LOVE to drink and drive. There’s nothing in the Constitution that restricts my right to travel between the states, is there? No, of course not! This ain’t communist Russia! I can drive wherever I want to drive, right? The Declaration of Independence says that I’ve got the inalienable right to life, liberty, and the pursuit of happiness, right? Well, drinking makes me happy, so that’s a protected right. I don’t care what so called ‘evidence’ you put on today, there’s no way I would ever vote ‘Guilty’ in this case.”
Even if this is your very first time selecting a jury and you have absolutely no idea what you’re supposed to do, you know that you need to strike this guy from the jury, right? Now that you’ve successfully identified him as a definite strike, does that mean you should stop talking to him? Definitely not!
But do you know why you should keep talking with him?
It’s not because you’re trying to learn more about him so you can re-evaluate whether or not to keep him on the jury. This guy is so bad for your case that you’d probably be willing to exercise all of your peremptory strikes just to get rid of him.
The reason you want to keep him talking is so you can turn him into a “sounding board” and learn who else feels the same way that he does.
Here’s how you’ll use this opinionated juror to your benefit. Start by asking your strongly opinionated friend another question that is designed to keep him talking. It doesn’t need to be a mind bender of a question, just something open-ended that lets him continue expounding on his previous thoughts. For example:
If you don’t know what to ask, just use simplest follow-up question in the world: “Why?” It doesn’t matter what question you ask, just so long as it’s open-ended and gets him talking. (The best words to use when asking open-ended questions are “Why?” “How?” “Explain…” or “Tell us…”)
Now here’s the secret to spotting favorable jurors. When you ask your sounding board the follow-up question, you’re not really listening to him or looking at him. After all, you don’t really care what he says — he’s got less chance of sitting on your jury than O.J.’s chances of asking Det. Mark Fuhrman to be a character witness at the sentencing hearing. [Yeah, I had to go there]
If you’re not focusing your attention on the opinionated juror, where are you looking?
You'll still maintain some eye contact with the juror, but what you’re really going to be looking at is how the other jurors respond to him. Some of your potential jurors might agree with what he’s saying, and others might disagree. As he continues talking, some of these jurors will express their feelings through their body language. Your job is to pick up on these non-verbal clues so you can identify which camp the jurors belongs to.
When you ask the follow up question, expand your visual focus. Don’t lock in on the opinionated juror. Look at the entire jury panel, keeping your antennae raised for any indicators of agreement or disagreement. Here are some of the clues you’ll want to look for:
Once you identify the other potential jurors who agree (or disagree) with your opinionated juror, you have two options. If you think the other juror agrees, get him to voice his opinions. If he speaks long enough, he might say something that lets you strike him for cause, too. The two easiest follow-up questions you can ask are, “[NAME], what do you think about what he said said?” or “[NAME], how do you feel about what he said?” Either question forces him to give more than a “Yes/No” response, improving your chances that he’ll say something worth noting.
If you think you’ve found a juror who will favor your client’s case, you’ll want to keep him on your panel. In that situation, you might not want to ask him anything, and simply make a positive note on your legal pad and hope your opponent doesn’t pick up on the body language. (Keep in mind, however, that it’s always risky to expect your opponent to overlook anything.)
Many trial lawyers think that strongly opinionated jurors, especially those who vocally disagree with you, are problematic. Nothing could be further from the truth. These opinionated jurors can serve as a sounding board to help you identify favorable jurors, and they can also help you ferret out unfavorable jurors. Keep ‘em talking, and your jury selection will dramatically improve!