The right to a speedy and public trial by one’s peers is guaranteed by the Sixth Amendment to the Constitution. After all of the preliminary motions have been disposed of, the case is set for trial on a date specific.
The court, the prosecutor and the defendant’s lawyer are all provided with a list of prospective jurors, selected at random from the registered voters, referred to as the venire. Both sides try to determine which of the prospects are most likely to favor their side of the case. No contact with a prospective juror is permitted.
My procedure was to immediately check to see if any of them had any criminal record, credit history, prior jury service, domestic problems or employment history; in short, anything in their background to indicate that he or she would be inclined to be sympathetic to the defendant. We were interested in the “solid citizen” type. We pretty much had in mind who we wanted on the jury and who we didn’t before the in-court selection process began.
The judge, lawyers and prospective jurors all took their places, and the proceedings commenced. The judge described how the case would proceed, how many days the trial was expected to take, admonished them that they were not to discuss the case with anyone, even among themselves until finally submitted, and that if anyone tried to discuss the case to report it immediately to the bailiff. When the judge was finally through (it took a little longer in election years), the 12 “in the box” were turned over to the prosecutor for questioning.
This phase is referred to as the voir dire, an old term meaning to tell the truth. My tactic was not to be confrontational; friendly but not gushing. Based on the preliminary research, the personal appearance and the attitude of the prospective juror, I could pretty well tell how he would react to the evidence. To me, the perfect prospect was 40s to 60s, married with children, self-employed and no experience with the law.
At the opposite end of the spectrum was a prospect who was mid-20s, single, wearing jeans with a tattoo and an attitude. The rest of the prospective jurors were, to varying degrees, somewhere between these two polars. If a prospect expressed hostility or an unwillingness or demonstrated that he would not be fair and impartial, either side could challenge him for cause. If the judge agreed, he would excuse him, and the next person was called as a replacement.
When I was finally finished, the 12 prospects were turned over to defense counsel. He, of course, was looking for the exact opposite person than I had been. I had no way to know how much pretrial background work he had done on them, but his questions generally were designed to determine if there were any law enforcement people among the family or friends of the juror or his family had ever been the victim of a crime, or if they had any preconceived idea that because the defendant was in court being tried that he must be guilty. When defense counsel was finished, either side could challenge a juror for cause if he had demonstrated that he would not be a fair and impartial juror.
After all challenges for cause had been ruled on and their seats taken by new people, you move on to a procedure that is known as peremptory challenge. A peremptory challenge is one in which each side can alternately excuse four persons from those already seated. No reason is needed. Replacements from the venire are substituted.
You have to be very careful here. There may be several sitting there waiting to replace a challenged juror who is absolutely anathema to one side or the other, which means he is coveted by the other. If that person moves up and you have used your last challenge, you may leave an opening for an even worse prospect to get on, and thus have hurt yourself.
Remember that in criminal cases, all 12 must agree on the verdict. You may use your last peremptory on someone who is seated because he is wearing earrings to find his replacement has a tongue ring and two tattoos. Be careful. When both parties have exhausted all challenges, for cause and peremptory, you have your jury.
Next, two alternates are selected using the same procedure of voir dire and challenge. These people participate in deliberation only if one of the 12 cannot complete the service. They are sworn in. The jury is now completed. The Judge dismisses us with the admonition, “We will be in recess until 1:30 when we will have opening statements.”
Moral of the story: Don’t believe everything you hear in a courtroom.
Lawrence S. Huffman is an attorney in Lima and a guest columnist in The Lima News.