A few weeks ago, I mentioned that one of my recent trials ended in a mistrial after we discovered that one of the jurors had deceived us during jury selection. What I didn’t mention was how my opponent did an exceptional job of establishing a record to show how his peremptory strikes would have been differently exercised had the deception been uncovered during jury selection.

At one point, as we were debating whether or not the motion for mistrial should be granted, the judge asked him, “How have you been prejudiced?”

Here’s how he responded:

“I would have exercised my peremptory strikes differently, your Honor, and seated a different panel. Judge, the juror who lied to us was #11 in the jury pool. By the time we reached her, our jury was comprised of jurors # 1 - 2 - 4 - 6 - 11 and 13. At that point, I had used three of my peremptory strikes and had three more strikes available. If we had discovered the truth about her earlier, I would have asked that she be excused for cause, or would have used my fourth peremptory strike to excuse her. Instead, I used my fourth peremptory strike on juror #14. The next time we reached a panel, it was comprised of jurors # 1 - 4 - 6 - 11 - 13 and 16. If #11 had been properly stricken from the jury, the composition of the panel would have been different. Some of juror #11’s life experiences balanced out the life experiences of juror #1, but without #11 on the panel, I think the jury would have favored the plaintiff, and I would have back-stricken juror #1. Additionally, I exercised a back-strike against juror #6. If juror #11 had been properly stricken, I would not have exercised that strike. Instead, based on the composition of the panel, I would have accepted juror #6 so I could save one of my peremptory challenges to strike juror #21.”

I have to admit, I was impressed. At every point during the selection process, he could outline exactly which jurors had been seated, how many strikes each side had exercised, which order they’d been exercised in, and could tell us the exact composition of the jury pool. Up until this point, the only system I’d ever used for memorializing the jury selection process was a rudimentary model that cataloged which jurors had been stricken and which side had exercised the strikes. Here’s what my typical jury selection sheet looked like:

Actually, I used a shorthand method to document my strikes, so a typical jury selection sheet looked more like this:

It was an easy system that told me at a glance exactly who had been stricken and which side had struck the potential juror, but it didn’t give me much more information than that. I had no way of capturing when the jurors were stricken, which number strike had been used, or what the composition of the jury pool looked like. But if you want to create a perfect appellate record, that’s the type of information you’ll need.

After we finished, I asked if he’d be willing to share his jury selection system with me, and he said he would, and now I can pass it along to you. Here’s how his system works:

For our example, let’s assume you’re working with a panel of 24 jurors, each side has six peremptory strikes, and your jury is comprised of six jurors.

The first thing you’ll do is write down the numbers 1-24 on your legal pad, leaving enough space between each line to write a quick note or two:

Juror #1:
Juror #2:
Juror #3:
Juror #4:
Juror #5:
Juror #6:
etc…

As you each juror is stricken, you’re going to write down who struck them, and which peremptory strike they exercised:

Juror #1:
Juror #2:
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
etc…

Once you finally have six jurors seated, draw a line across the page and list the makeup of the jury:

Juror #1:
Juror #2:
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 - 2 - 4 - 6 - 11 - 13
—————————————————————–

Once you have enough jurors seated to comprise a jury, the judge will ask if either side wishes to “back-strike” any jurors. Once either side back-strikes a juror, the composition of the jury changes. For example, let’s say that the plaintiff back-strikes juror #2. Here’s how your notes would look as the jury selection continues:

Juror #1:
Juror #2: Plaintiff back-strike #3
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 - 2 - 4 - 6 - 11 - 13
—————————————————————–
Juror #14: Defense strike #4
Juror #15: Plaintiff strike #4
Juror #16:
—————————————————————–
Panel seated: Jurors # 1 - 4 - 6 - 11 - 13 - 16
—————————————————————–

Once again, the judge will ask if either side wishes to back-strike any jurors. This time, the defense strikes a juror:

Juror #1:
Juror #2: Plaintiff back-strike #3
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6: Defense back-strike #5
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 - 2 - 4 - 6 - 11 - 13
—————————————————————–
Juror #14: Defense strike #4
Juror #15: Plaintiff strike #4
Juror #16:
—————————————————————–
Panel seated: Jurors # 1 - 4 - 6 - 11 - 13 - 16
—————————————————————–
Juror #17: Plaintiff strike #5
Juror #18: Stricken for cause (plaintiff’s request)
Juror #19: Defense strike #6
Juror #20: Plaintiff strike #6
Juror #21: Defense challenge for cause DENIED
—————————————————————–
Panel seated: Jurors # 1 - 4 - 11 - 13 - 16 - 21
—————————————————————–

Later, when it becomes important to establish a record because you’re requesting an additional peremptory strike, you discover a juror impropriety, or something else arises, you’ll be able to tell the judge what you would have done differently if your request for relief had been granted.

[Special thanks to Herb Kellener for sharing this tip!]

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You know that jury selection can be the most important part of your trial, because it’s your only chance to uncover the views, attitudes, or life experiences that potential jurors will bring into the deliberation room.  If you don’t uncover their negative views and beliefs during jury selection, you’ll be stuck with a juror who is biased or prejudiced against your client, and your client won’t get a fair trial.

How will you uncover those biases and prejudices?  With the only weapon you have in your arsenal: a well-phrased question.

The power of a well-phrased question can be amazing.  When you ask well-phrased questions, you can learn intimate details about potential jurors.  As a result of well-phrased questions, I’ve watched jurors publicly talk about race and race relations with a candor you’d only expect to hear behind closed doors, heard jurors admit to biases that they were previously unaware they’d been carrying, and even witnessed a woman disclose that she had been a victim of abuse (something that she’d never told anyone, not even her own family!)  Without well-phrased questions, most jury selections would be a complete waste of time.

But asking the question is only half the battle.

Not long ago, I was watching a criminal case where the defendant was accused of robbing a man at gunpoint.  The defense attorney planned to argue that the defendant was a victim of mistaken identity, so during jury selection he asked the potential jurors, “Have any of you ever been wrongfully accused of something?”

As far as jury selection questions go, that’s not too bad a question, is it?

It’s an effective question because, in addition to gathering information about the potential jurors, it works on two additional levels.  First, it promotes the defense’s theme of the case: “An innocent man, wrongfully accused.”  Second, it gets the jurors to think of a time when they’ve been wrongfully accused of something, which helps them empathize with the defendant’s plight.

But, like we discussed earlier, effective jury selection requires more than simply asking good questions.  Effective jury selection also requires the jurors to answer the questions.  In this case, even though the defense lawyer had asked a good question, he didn’t learn anything about the jurors, because no one answered his question.

Why didn’t they answer?

Because he didn’t give them enough time to think.  Instead, here’s what he did: He asked the question of the entire panel, and then looked to see if anyone would speak up.  When no one responded after a few seconds, he dropped the issue and moved on to another topic.  But a few seconds isn’t enough time for jurors to respond to thought provoking questions.  If you want jurors to answer your questions, you need to let them think.  The more thought-provoking your question, the longer it will take jurors to respond.

Here’s an example.  Take this pop quiz, making a note of how long it takes you to think of each answer:

Question #1. Who were the three most influential people in your life?

Question #2. Name three characters on The Simpsons.

You answered the second question much faster, didn’t you?  The reason why it took you longer to answer the first question isn’t because you didn’t know who had influenced you.  It took you longer to answer because you were forced to quickly think back over your entire life history, pick out all of the people who had influenced your life, and then rank the top three.  The second question merely asked for you to recall information, but the first question was thought provoking.

It takes longer to answer thought-provoking questions.  When you ask jurors thought-provoking questions like, “Have you ever been wrongfully accused of anything,” don’t take their silence as a “No.”  They want to answer your question, but they’re busy sorting through their entire life histories before they can respond.  Here’s what’s going through their heads:

“Let’s see, have I ever been accused of anything I didn’t do…  Um, let me start by thinking about work.  Has my boss ever accused me of something like that?  No…  Co-workers?  No…  What about my previous job?  Nah, nothing like that there.  My summer internship?  No, they never accused me of anything.  Well, wait a second…  no, nothing like that.  How about my time in the military?  No, never accused of anything there…  College?  Ummmmm….  No, nothing.  Oh, wait!  First year of college, I had a roommate accuse me of drinking all of his soda and not replacing it.  I forgot about that…  But I was a Dr Pepper drinker, and he only had Coca-Cola, and I never touched his Cokes, and then we figured out it was our third roommate’s girlfriend who had stopped by and drank all the Cokes, so yeah, I guess I have been accused of something I didn’t do…”

Unfortunately, when jurors greet our questions with silence, we feel the urge to quickly advance to another topic, hopefully one that will generate a better response.  That’s probably what this defense attorney felt.  When he saw that the jurors weren’t responding (aloud) to his question, he jumped to his next topic.  But if he’d simply given the juror more time to answer, he would have received a response, and would have been able to learn more about the juror.  Instead, reviewing that stream-of-consciousness paragraph above, I think he probably switched to the next topic somewhere around the time the juror would have been thinking about “co-workers” or the “summer internship.”

The next time that you ask a thought-provoking question, make sure you give the jurors enough time to answer.  Here’s a seven step technique you can use to ensure you’ve given them enough time to think:

1. Ask the question of the entire panel (and tell them how they should respond): “By show of hands, has anyone here ever been wrongfully accused of something?”

2. Show them how to respond: While asking the question, raise your own hand in the air.  (Telling them how to respond and then showing them how to respond will encourage greater responses.)

3. Pause.  Don’t rush it.  Mentally count to 10 or so before you even think about saying anything else or moving to another topic.

4. Look ‘em in the eyes.  While you’re pausing, make eye contact with several jurors and use the power of your eye contact to encourage responses.  Keep an eye out for the ones who look like they’d like to respond, but haven’t made up their minds yet.

5. Nobody volunteered?  Pick on someone.  Actually, pick about 3-4 people, from different parts of the room, and ask them directly: “Mrs. Jones, have you ever been wrongfully accused of something?”  By asking them directly, sometimes you’ll prompt a better response.  (A good place to start is with the people who looked like they wanted to respond, but didn’t raise their hand.)

6. Ask the entire panel again.  Even if no one responds to your individual questions, it’s not a waste of time, because you’re giving the other jurors time to finish thinking their way through your question.  Now that they’ve had enough time to finish thinking, ask the entire panel once again, perhaps adding a bit of a challenge to your question: “Really?  No one here has ever been wrongfully accused of anything?”

7. Pause (again).  Look ‘em in the eyes (again).  Hopefully, this will prompt any hold-outs into answering the question.  If not, consider rephrasing the question, or moving on to another topic.  At least you’ll know that you didn’t cut off anyone’s thought process and prevent them from answering.

Getting jurors to talk is not always an easy process, but if you’ll invest the time before trial developing well-phrased questions and then give the jurors sufficient time to answer your questions during jury selection, you’ll start to learn more about your jurors than you’ve ever known before.

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