Here we look at the jury selection process, including:
- basic jury selection procedures
- good questions to ask potential jurors, and
- how to disqualify a hostile juror.
How Jury Selection Works
Many lawyers believe that selecting members of a jury is the single most important phase of the trial. As the defendant, this is because you want to send narrow-minded, police-oriented individuals straight home, because they will rarely vote for acquittal no matter how good a case you present. By contrast, you are hoping for jurors who are open-minded, willing to listen to both sides, and at least a little skeptical of police and prosecutorial power.
But realize that in an ordinary traffic case, many judges will already be annoyed that you are insisting on a jury. It follows that they will want to complete the jury selection process expeditiously, believing that any group of citizens is qualified to decide whether or not you rolled through a stop sign. Although, as discussed below, you'll want to protect your rights, it is almost always a big mistake to act as if your case is akin to "murder one" and try to insist on every technical procedural right. Or put another way, if you piss off a judge seriously enough, he or she has many ways to all but make sure the jury finds you guilty.
Jury selection normally begins as soon as the judge calls your case and after any preliminary motions are resolved. (See What Happens in Traffic Ticket Trial by Judge? for more on motions.) Potential jurors will normally wait in a "jury assembly room" where you will not have contact with them. In a few courts, they may be milling around in the corridors or seated inside the courtroom. In the unlikely event you find yourself talking with a potential juror, do not discuss your case, because this may be seen as attempting to tamper with the jury. Casual conversation about the weather or sports is okay.
When your case is called, the first group of potential jurors will be asked to take their seats. In some courts, you will be provided with a list of the names and occupations of the potential jurors. If so, write them down on a chart that looks like the one below. Modify the chart if your jury has fewer than 12 members. If you don't get the names in advance, fill them in as you go along.
Use sticky paper notes. Removable sticky paper comes in handy to write jurors' names and place them in the appropriate place on your jury seating chart. That way, if a juror is removed and replaced, you can simply peel off the old note and write a new one.
The next step is to question jurors to see if any juror is biased or may view you in a negative way. This is called "voir dire," from the French words for "to speak the truth." In many states the judge will probably elect to ask all the questions. Usually the judge will direct questions at the entire panel, not to individual jurors. Often this will consist of only a few perfunctory questions relating to occupation, spouse's occupation, previous experience with the criminal justice system, and possible acquaintance with police officers and attorneys. For example, a judge might ask:
- "Do any of you know any of the parties to this case, specifically Sam Safespeed, Pam Passenger, or Officer Ticketem?"
- "Do any of you work for the police, the district attorney's office, or any other law enforcement agency?"
- "Do any of you have relatives or close friends who work in law enforcement or in a district attorney's office?"
- "Does anyone on the jury panel know of any reason why he or she can't render an impartial decision in this case?"
If a potential juror reveals a possibly significant prejudice that could bias him or her against you, the judge will probably quickly excuse that particular juror "for cause" without you even having to say anything. When the judge is done, he or she may allow you and the prosecutor to ask a few additional questions designed to ferret out a juror's prejudice or bias. (A sample list is shown below.) This lets you avoid using up your peremptory challenges. If a judge excuses a juror, a new juror will be called to sit in the jury box. At this point, the judge may ask additional questions of these new individuals or, if these people have already been in the courtroom, simply ask if they heard the questions and if they personally know any of the parties or anyone who does.
When the judge is finished questioning the jurors, it often makes sense to indicate that you accept the jury with no need to ask more questions. Again, in a garden variety traffic court case, you'll likely score more points by being fair and reasonable than you will by acting like Perry Mason (something you're likely not too good at anyway). That being said, there can, of course, be times when you'll want to ask jurors a few additional questions. This is particularly likely if the judge has done a half-baked job in attempting to determine if any jurors might be biased against you.
Questions to Ask on "Voir Dire"
Assuming you are given a chance to ask questions, don't repeat any of those the judge or prosecutor has already asked. Instead, follow up on any possibly unsatisfactory answers a particular juror already gave by asking for more detail. If you are told to ask questions directed at the whole panel, try these:
- "Do any of you have any objections to sitting here as jurors in a traffic-related case? Please raise your hand if you do."
- "Do any of you object to the fact that I will be representing myself without an attorney?"
- "Do any of you have trouble believing that a person is innocent until proven guilty beyond a reasonable doubt on the basis of the evidence?"
- "Have any of you ever been employed as a law enforcement officer or security guard?" (Note: Anyone with this background within the past ten years should probably be disqualified with a "peremptory" challenge if the judge has not already excused them for "cause.")
- "Do any of you have any close friends or relatives who have been employed as law enforcement officers, security guards, or in the district attorney's office?" (Note: You should probably exercise "peremptory" challenges on spouses, parents, children, or siblings of anyone in law enforcement if the judge has not already excused them for "cause.")
- "Are there any among you who would believe the word of a police officer solely because he or she is a police officer, over my own testimony?"(Note: Definitely exercise your "peremptory" challenge against anyone who even vaguely reeks of "bad vibes" when you ask this question.)
- "Do any of you believe that police officers are highly unlikely to make mistaken observations?"
- "Do any of you believe a police officer always tells the entire truth?"
- "Have any of you ever sat on a jury previously where the defendant was charged with the offense I'm charged with?" (Note: If anyone answers "yes" to this question, follow up by asking, "Did that jury reach a verdict?" If they say "yes," you should assume the verdict was "guilty" and exercise your "peremptory" challenge.)
- "Have any of you ever been involved in an automobile accident that you believe was caused by someone else breaking the law?"(If a prospective juror answers "yes," be prepared to follow up by asking the prospective juror to describe the accident, when it occurred, and how he or she thinks the other driver violated the law. If the prospective juror says the accident was recent, and that the other driver violated the same law you're charged with, you may want to exercise a "peremptory" challenge to excuse this juror.)
- "Are there any of you who don't drive or drive fewer than 5,000 miles each year?"(Note: A person who mostly takes public transit and drives only to church on Sundays may not be as sympathetic to your technical violation as a traveling salesperson who drives 20,000 miles a year and gets frequent speeding tickets.)
- "Are there any among you who have never been cited for a moving traffic violation?" (Note: You probably want to disqualify any juror who's never been subjected to the indignity.)
What to do if you are unhappy with a juror's answer. If a juror says something that indicates to you that he or she might not be fair, be prepared to ask a follow-up question. For example, you might say, "Mr. Jones, I noticed you seemed to nod slightly when I asked you if you had any friends or relatives who were police officers. Was that a 'yes' answer?" Depending on the answer, you might want to ask further questions to expose a possible anti-defendant or pro-police prejudice. If you decide to excuse that particular person, either use one of your peremptory challenges or, if the juror's possible bias is obvious, ask the judge to excuse the juror for cause (see below).
How to Challenge a Juror
There are two reasons you may want to get a particular person off the jury:
- The person exposes a clear bias against you (says he or she hates people who drive fast), or
- You have a bad feeling about a juror for a vague, undefined reason.
Fortunately, there are also two ways to get rid of a juror you do not want.
Challenges for Cause
If a prospective juror strongly indicates that he or she can't be fair, the judge may disqualify the juror before you say anything. But if this doesn't occur, wait until you are given a chance to make a challenge and ask the judge to disqualify that person for cause. To do this, simply say, "Your Honor, I respectfully challenge prospective juror Smith for cause on account of his statement that he would 'find it hard to be fair' in light of his statement that his mother was injured by someone who was speeding."
Here are common reasons why a judge will agree to dismiss a juror for cause:
- The prospective juror, or his or her close friend or relative, was seriously injured by someone who committed the same type of offense you're charged with, and the juror admits it would be hard to be objective.
- The prospective juror indicates that he or she would believe the word of a police officer over you, just because the witness was a police officer.
- The prospective juror is a close friend or relative of the officer or any other prosecution witness, or of the prosecuting attorney.
- The prospective juror learned of your case before being called to court as a juror, and has expressed some opinion about your guilt.
It pays to be polite. If you are nasty or sarcastic when you ask the judge to excuse a juror, you are likely to alienate the remaining jurors. As with most areas of life, it pays to be pleasant.
If the judge disagrees with you and refuses to remove the juror, you still have another way to get that juror off the panel.
Peremptory (Automatic) Challenges
In most states you have the right to excuse a certain specified number of prospective jurors for any reason, or for no given reason at all. How many of these automatic or "peremptory" challenges you are allowed varies from state to state (often depending on the offense you're charged with, and on the size of the jury). With a jury of 12, it would be typical for you and the prosecutor to each have anywhere from three to ten peremptory challenges. If the jury has only six members, you might be allowed only two to five such challenges. But since this is an area where each state does things a little differently, you'll want to ask in advance what your state's rules are.
Most experienced trial lawyers believe that, when considering whether or not to challenge a juror, it's wise to respect your instincts. If you get bad vibes from someone—even if you can't explain why—you'll want to remove that person from the jury. But in addition to trusting your gut, if the judge does not excuse them, you probably would be wise to consider exercising peremptory challenges to exclude the following types of people:
- present and former police officers and security guards, their spouses, and children
- anyone who has ever worked in a prosecutor's office, including lawyers, paralegals, and support staff
- relatives or close friends of the above
- anyone who has ever been involved in an accident, or had a relative involved in an accident, caused by someone who was charged with the offense you're charged with (assuming, of course, you've been able to get this information)
- people who don't drive much, or who have never received a traffic ticket
- people who, from gestures, body language, and a generally hostile attitude, obviously resent being called for jury duty
- people you feel uneasy about but don't know why, and
- (possibly) people whose dress and/or lifestyles are very different from yours.
Again, when you exercise a peremptory challenge, be polite. Simply say something like this, "Your Honor, the Defense would like to thank and request the court to excuse the fifth juror, Ms. Jones."