It’s been said many times that you win or lose your case in jury selection. But is this really true? Is jury selection so critically important that it will make or break the verdict? Yes and no.
Jury selection is critically important. No doubt about it. However, I do not believe that the jury you have seals the fate of your case. Of course evidence matters, but that’s not even what I’m referring to. Jury selection is a misnomer. We all know it’s really about de-selection. And that implies something – it implies that you’re not choosing the jury that’s best for you, you are eliminating the worst on the panel. That’s all jury selection can do – give you a better chance at a good verdict than you had before you started eliminating people.
In most jury selections I take part in, there are more “bad” jurors for our side than good. While cause challenges certainly help, judges are often hesitant to grant them even when a juror outwardly states that they cannot be fair and impartial. This often leaves you with 4 strikes but 7-8 bad jurors. And those are just the bad jurors that you know of. How much do you really know about the person when your voir dire is limited to 20 minutes? Sure, sometimes your opponent may strike a bad juror or two for you if they also believe they are harmful to their case, but more times than not, you will have more jurors to strike than you have strikes and you will likely be left with one or two jurors that were more quiet whom you know little about.
This brings me back to my original point. A great majority of the time (maybe even all of the time – but I hate absolutes, so we’ll say over 95% of the time), you don’t win or lose your case in jury selection. Even if you think you have a good jury, you never know what answers you would have gotten if you’d had more time to talk to the jurors during voir dire. During jury selection, you can only improve your chances of a good verdict but always go into trial assuming that you will have a few bad jurors left on your panel.
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What are the implications of the assumption that the jury will include some bad jurors?
The implications are that you need to prepare for trial as if you’re certain there will be bad jurors on the panel. It’s not enough to assume that you’ll be able to get off jurors who will have a problem with one of the main issues in your case and therefore you’ll be fine. You need to run focus groups to know what the problem jurors are concerned about and if possible, run repeat focus groups to test solutions to those problems. Opening needs to be structured a certain way, you need to know how to arm your good jurors in closing so they can fight the bad jurors, and you need to always keep in mind what those bad jurors are thinking as you do direct and cross exam.
Given the restraints of time that most judges place on jury selection, the innate biases of jurors, and many other factors, it is impossible to pick a “perfect jury”. I believe you will always end up with at least one or two jurors who are very difficult to persuade. The flip side is that you will, hopefully, have 1 or 2 that are solid in your camp. You need the positive jurors to become your advocates in the jury room. Luckily, in California, only 9 out of 12 jurors need to vote you up to get a verdict in your favor.