Jury Selection From A Venire Panel

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

Now, we have made it up to opening statement. At this point, you have gone through the jury selection process where a venire panel will, say on average 48 people, come in and some questions will be asked by the judge. One of the questions will be “Is there anyone here who would not be a fair juror just based upon knowing what the charge is?” Now, in certain parts of the state, your more conservative parts of the state from a religious perspective, I’ll never forget, I picked the DUI jury one time and when the judge asked that question and made it specific to alcohol, “Is there anyone who would have trouble sitting on this case just knowing what the charge is and that alcohol is involved”, and 45 hands went up in the air. I mean I moved to strike the panel, the judge denied it. That did not go very well.

So, you have to know your locality and that is critical. But the judge is always going to start by asking some questions, then the prosecutor will ask some questions, and then the defense lawyer can ask some questions and then you or your loved one will go with the attorneys up to where the judge is sitting at the bench. And the judge will turn off the microphone and there is a recent trend in Florida where in addition to turning off the microphone, they turn on the most annoying sounding static in the history of earth. Think about how your television sounds if you have it turned on but it is not hooked up to cable, Netflix or whatever and you hear that scratching sound, yes, it is something like that. That is to prevent the venire panel from hearing the discussion up at the bench.

And what the lawyers are doing is they are first going through what are known as strikes without cause. That means you can strike a juror for any reason unless they are a member of a protected class. For example, if you strike people because they are of a particular race or gender, those are protected classes and the other party, if that is challenged, has to give a gender or race neutral reason for that strike even though it is a strike without cause. Generally, that goes pretty smoothly and the client is always brought to the bench so that you can be involved in the process.

Next, the lawyers and the judge with the client present will go through what are known as Strikes for Cause. Now, some judges do the reverse of this but most do strikes without cause and then strikes for cause. What is the strike for cause? A strike for cause is, “Judge, Juror number 27”, they are not jurors, they are not jurors at this point but for some reason, we always use that language, “Juror number 27 said such and such in response to this question. Therefore, I move to strike for cause”. And the judge may say to the other side, “Do you agree or not”, the other side agrees, no problem. If they do not agree, then the judge makes the ruling. And sometimes, the judge will then call that particular venire panel up to the bench so that the judge can ask some questions and then both sets of lawyers can ask some questions. And then that venire panel member will go back and sit in the room and the lawyers will haggle with the judge and the judge will make a ruling. And once six jurors, 12 in a capital case, have been selected, next you will select alternates.

Now, I have had so many trials that I have had more than one end up being decided by a 5-person jury. What are the odds of a hold at juror on a 5-person jury compared to 12 or even 6? Not very good. But what happened was we selected one alternate and sure enough, two people could not serve through to completion. So, what I normally recommend and what I teach is that lawyers should ask for two alternates. Yes, there is a little bit more expense to the county, I understand that but it is also a good safe practice to make sure that you do not have to make that decision, “Do we do the trial all over again or do we go forward with a 5-person jury” because I have been in that position more than once and that should not happen, so that is why I started asking for two and it has always been granted. You will need to speak your legal team about this but that is the basics of jury selection.

Now, in the next video, we are going to discuss what happens after jury selection and after opening statements.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.