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The Florida Bar

Jury Duty & Selection

Why are some jurors chosen to sit in judgment on criminal trials while others are excused from serving? Can you get out of jury duty? What practices and questioning techniques are most effective from a criminal lawyer’s perspective?

Most people are uncertain about what it is they can expect when being called for jury duty the first time. The fact is that most Americans base their understanding of our criminal justice system on television. Whether broadcast is of an actual trial or TV drama, such portrayals don’t actually depict the day today litigation that takes place and involves cases that are not received media attention. Even in televised criminal trials, the jury selection process is most often excluded given the delicate nature of the jury selection process.

Criminal Lawyer William R. Moore who practices in Fort Lauderdale, Florida clears up some misconceptions about this very important phase of the criminal justice system and offers advice.

It is no wonder that most people are apprehensive or even feel anxiety at the thought of participating in the criminal justice process. Although most are willing to serve patriotically, the first thought for most is to get as far away from something that they will consider to be uncomfortable and not just inconvenient.

Can You Get Out of Jury Duty?

The question I get asked possibly the most often by non-lawyers about jury selection is whether or not they will be able to avoid the inconvenience of having to serve on the panel of a criminal trial. The answer to this question depends on whether your intention is to avoid it altogether or if instead, you may postpone service due to its conflicting with something that you have scheduled, an important work matter or an emergency of some sort.

As United States citizens, we are obligated to serve on juries when called to do so. There is little to no chance that you will be able to avoid serving in some capacity and at least one point in your life. In fact, many of those who comprise our criminal justice system consider this to be the single most important obligation that our country places upon you. Many judges considered to be the only mandatory obligation that our nation imposes on its citizens.

When it comes to conflicts that naturally arise in a process such as this, it is quite common, with proper explanation and documentation to be relieved from serving when called to do so, however only for a limited time. Meaning that he would most certainly be called back at some later date and expected to serve. I will talk about how this works and how to go about it in a few minutes. First it’s a good idea to gain a general understanding of just what it is that criminal defense attorney’s look for during this process and how it is perceived by judges and prosecutors.

How Are Jurors Selected and Why Isn’t It Just Random?

There is a reason that lawyers and the judge are allowed to ask very personal questions of the prospective jurors. All defendants have the right to a fair trial which requires that each person chosen to sit in judgment be found to be fair and impartial. The only way to make that determination is to talk to each and every potential juror sitting on the panel. Most often 20 to 30 people are questioned for the sole purpose of selecting only six (and one alternate). It is not uncommon for more potential jurors to be called into the courtroom when it appears that the required number of fair and impartial jurors will not be obtained. This however, is not to suggest that most of the pool of original presumptive pool couldn’t be fair, rather, that tactical lawyering makes it seem that way.

Both the prosecutor and defense attorney are really interested in choosing jurors that will vote their way. Some would argue that a juror’s inability to be fair wouldn’t bother either the assistant state attorney or criminal defense attorney to the case as long as that lack of fairness seems to indicate that they would make findings favorable to the litigator.

There is simply no denying that both the defense and prosecution are looking for jurors that are to favor their side over the other side.

There are a lot of misconceptions and myths out there about who defense lawyers like on juries and who prosecutors like on juries. I do believe however, that criminal defense attorney’s believe that a greater number of African-American jurors have seen abuses by police officers are more likely to question whether or not the person who is being accused is really guilty. A motion by the prosecution to strike a juror for this reason alone is discriminatory and precluded under Florida criminal law. It is heavily debated in many criminal trials that some prosecutors question such a presumptive juror to great lengths in an effort to find a race neutral reason to have them stricken.

An attorney who has tried many criminal cases in the course of his or her career will most likely tell you that choosing a juror based on stereotypes alone is completely ineffective. It is only through well-thought-out questions and keen observation that an experienced lawyer will be able to truly gain insight to whether choosing that individual will help him win the case.

Jurror claims that they cannot be fair and impartial if they are chosen to sit in judgment on a criminal trial are not only common but ineffective where the statement is not followed up by some convincing reason. This is most often the case where a prospective juror was the victim of a crime similar to that which the current defendant is being charged.

Do Most People Answer Questions in a Way That Is Aimed at Getting Out of Serving?

The truth is that most people want to answer questions of the lawyers in an innocuous way so as to not favor one side or the other and it’s hard to really learn the truth about them. Is only through well thought out questioning following a jurors answer that you will begin to unravel what type of person they are and how their life experiences may have shaped them into the perfect juror for your case. Be mindful, however, that the questioning must be done so in such a manner as not to tip off the prosecutor who will then employee his or her own tactics to strike the individual. This is a true art form that can only be developed over years of practice and numerous jury trials. Much is going on very quickly during the jury selection phase that a defense attorney must factor into a tactical Voir Dire. Most criminal lawyers, such as myself, have never chosen to have counsel or a second lawyer assisting with the trial, meaning than in a vast majority of criminal cases it is just a single lawyer having to process an overwhelming amount of information, in front of the court room full of people and subject to the criminal rules of procedure which limits thousands of question types.

Most people think that a defense attorney has a team of qualified individuals helping him or her during the jury selection process.

In Florida, cameras are allowed in every court proceeding involving a high profile case. In such cases the defense has what appears to be an army of people working for them an attorney on public display will often hire psychologists and other experts to help them determine how certain people are going to react to certain situations as to not be publicly embarrassed. The truth remains however that majority of trials in this country are conducted by single attorneys working on their own and they don’t have the luxury of those experts so they learn from experience. They learn what kind of people relate to them and what kind of people don’t.

The most accomplished criminal defense attorneys are certain to tell you that a trial is either won or lost during the jury selection phase.

As a result, attorneys hone their skills right out of the gate and try and learn not only who likes them but more importantly, who will relate and favor the defendant. It is less important that jurors like the lawyer and more important that they be able to identify with that lawyer’s client.

Can I Be Excused From Jury Duty Because It Conflicts With My Vacation or I Have a Hardship That Week?

Some jurisdictions will allow you to reschedule your calendared jury service date by filling out a simple form and providing it to juror administration at the courthouse.

In most cases however, you must report to the courthouse on the date that you were scheduled according to the notice in order to submit an appropriate request to be excused. Should that be the case in your situation it is imperative that you bring whatever paperwork is necessary to prove what it is you’re saying. If someone just got sick in your family and you need the stock questions and analogies to stay home and take care of them then bring in a letter from the doctor. If your car broke down and you will you not able to get to work every day or get to that the jury room every day for the next week or two bring a letter or estimate from the body shop. If you have any vacation that for some reason wasn’t approved for excusal earlier, bring the airline tickets. The problem I see a lot of times with jurors that really have a hard time is when they are coming in are asking for something that is legitimate, however, no documentation to corroborate is brought with them.

If you have a big project at work, get documentation from your resources department. If you have the vacation and just print out the itinerary and let the court know. I don’t think any court is out to make jurors lives miserable. The problem comes with people who believe that they shouldn’t have to do jury duty and the reality is that you do.

Advice to Young Lawyers

Jury selection is quite confusing and takes years of practice. It won’t come from years of practice alone however. Keeping a constant record or jury selection notebooks outlining what worked and what didn’t at your last trial is paramount. Sit in on as many trials as is possible for the jury selection phase. By doing this you will quickly see what works and what doesn’t. The first thing that you may notice is that most of the lawyers will be saying the same things and asking the same questions as other practitioners that you have seen the past. This is a prime example of criminal litigators who have taken no time to truly understand effective process but rather mentally copied the stock questions and analogies that are so commonly seen by a majority of both prosecutors and criminal defense attorneys. You will know that you are a cut above when you don’t ask the same questions or use the same analogies during any two trials in the selection phase. When you can’t remember how long ago it was that you came to court with a written list of questions for jurors because your inquiry depends on what each potential juror and the collective panel say during the inquiry.

The William Moore criminal defense lawyers will be lecturing on effective criminal trial jury selection at 12:00pm on January 16, 2016 at the 110 Tower in Fort Lauderdale. This informative lecture is free of charge and those interested are encouraged to join us.

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