DWI attorneys should focus on front line defenses.
By Donald J. Bartell
Excerpted from Attacking and Defending Drunk Driving Tests
- Jury Selection System
During the hustle of jury selections it is helpful to have some reminders on what to expect and how to react. The following jury selection maxims may be of assistance during this time.
- You are never going to get a perfect jury. (Remembering this will keep you sane.)
- The question is always whether the jury is going to be getting better, or is it going to be getting worse. (This is simply the implementation of the first maxim.)
- With very limited exceptions, never use all of your peremptory challenges. (The danger is that you use of all of your peremptory challenges and the nightmare juror is then put into the box. Save at least one challenge for such an emergency.)
- If you are outpacing the prosecutor in peremptory challenges, you need to be more selective. (When you have less to work with than the other side, you cannot do as much work. Slow down and be more selective.)
- As you deplete your peremptory challenges, be more selective. (Similar to the preceding maxim. When you have less to work with, you simply cannot do as much work.)
- Focus your attention on the likely decision makers in the jury. Most jury verdicts are driven by the opinions of just two, three, or four people on the jury. (Use your challenges on the jurors who you feel are likely to be against you, and whom you feel will likely be the decision makers in the jury room. These jurors get challenged first. If you the have the luxury of having excess peremptory challenges, you can then consider challenging the jurors who will play a lesser role in the jury room.)
- On balance, people without prior criminal jury experience are preferred. (On average, jurors who have tried murder or robbery cases do not think it is such a big deal to convict someone of the more pedestrian crime of drunk driving. You, on the other hand, want the jurors to think that it is a big deal to convict someone of drunk driving. Remember, you should also convey this feeling by the demonstrable energy you bring to the case.)
- Contrarians hang cases. (A self-explanatory maxim.)
- Alliances are stronger than lone voices. Destroy unfavorable alliances comprised of two persons by striking at least one of the undesirable jurors. In this way you maximize the use of your peremptory challenges. (Since you have limited challenges, one way to maximize the impact of your challenges you do have is to break up the alliances against you. Look for jurors who are apparently bonding during breaks or agreeing with each other during voir dire. If you feel these jurors are opposed to your side and are becoming bolstered by each other, strike the stronger decision maker in the alliance. If you have the sumptuousness of excess challenges, you can then strike the remaining juror or jurors later. But, at least break up the alliance. In this way your challenges will count for more.)
- You do not want anybody on the jury who wants to be on the jury. (People who want to serve on juries usually have an agenda. That agenda is usually not good for the defense.)
- You must be prepared to take some chances. (Jury selection is part art, part science. You are going to have to gamble at some point. Knowing this ahead of time and explaining this to the client will lessen the stress for all when the time comes for you to take that chance.)
§19:21 Destroy the Presumption of Guilt
Your goal in voir dire is this: try to shatter the pall of guilt smoldering in the courtroom while simultaneously discovering who the pro-prosecution jurors are.
The jurors need to know at the outset that this trial is not simply going to be some pro forma event. The defendant disputes the accusations. There is going to be a fight and they are invited to attend.
If you can convey this to the jury and unveil jurors biased against the defendant, your voir dire will probably be a success. You must, however, destroy the presumption of guilt. This is the prime purpose of voir dire in drunk driving cases. It is also the secret to winning drunk driving trials.
§19:22 Questions That Help Reduce the Bias
Ask the jurors whether they have ever been in an argument with their spouse when their spouse had the first word in the argument. Then ask the responding jurors if they were anxious to get to have their say. Then explain that the defense does not get to have its say (i.e., put on its case) until the prosecution is completely finished with its case. Finally ask, indeed plead, that the jurors wait until the defense has had its say before they make up their minds on the guilt or innocence of the accused. This request to wait until the defense is presented seems imminently reasonable to most jurors. It also implies a forthcoming defense—thereby heightening the jurors’ curiosity in the case. Curiosity is the antidote to the presumption of guilt.
Tell the jurors that there is going to be evidence in the case that the defendant had consumed some alcohol. Ask the jurors if any of them have ever ridden in a car with someone who had consumed alcohol at dinner—as long as they felt that the person who had consumed the alcohol was safe to drive. This starts the melding process with the defendant. People are more accepting of conduct they have participated in themselves, even if the participation is only in a peripheral way as a passenger.
Empower the jurors by suggesting that as judges of the facts they imagine that they are wearing robes like the judge. The robe symbolizes their neutrality. They are not partisans, but judges.
§19:23 The “I Will Try” Juror
When the court is questioning jurors during jury selection many jurors indicate that they do not believe they can be fair because they think it is wrong to drink and drive. As a defense attorney you want to exclude as many bad jurors as possible for cause. This preserves your peremptory challenges. The confession by a juror that the juror cannot be fair seems to create an obvious challenge for cause.
The court often explains to such jurors that the trial is not going to be a referendum on drunk driving. Courts typically say something like this: “You do not support bank robbery do you? That does not mean you could not sit in judgment of a bank robbery case does it? We are just asking if you can follow the law. You can follow the law, can’t you?”
The intimidated juror often relents with the reply, “I’ll try.”
This I’ll try to be fair commitment is not exactly the type of effort the defense is hoping for. One way to politely address this half-hearted commitment is to use the following story:
A friend of mine was going to a convention in Las Vegas. Just as he was about to leave, his wife asked him if he was going to be faithful. He turned to her and said, “I’ll try.”
Next, ask the juror if the juror understands that the type of answer in the story above does not engender a lot of confidence. There usually is some laughter, and the point is made that simply trying to be fair is not what we are looking for in a juror.
At this juncture some jurors will actually concede that they simply cannot be fair—significantly strengthening your challenge for cause. Other jurors experience a little bit of an epiphany; they begin to realize the effort they must make to give the defendant a truly fair trial.
§19:24 Police Officer Testimony
Most people have a favorable view of the professionalism of the police. Police officers have a difficult job, and people count on them in emergencies. The positive preexisting attitude many jurors have about the police presents a problem for the defense. Generally, the defense will be attacking some aspect of the investigation by the police.
One way to deal with the problem is to discuss the issue in voir dire by asking jurors whether they will treat the testimony of police officers the same as any other witnesses. Unfortunately, this usually is not enough to combat the head start officers have in the credibility contest.
Lessen some of this automatic credibility by putting some distance between jurors and the police. After asking the jurors whether they will judge the officer’s testimony the same as any other witness, ask them if this is true even if they received a ticket from an officer in the past. (Note: If you are going to ask about bad experiences with the police, do not ask it of a juror you want to keep on the panel. Remember the Golden Rule of voir dire: do not ask any questions that may expose a defense juror.)
Now the stage is set. Ask the jurors whether they feel everyone should be treated equally under the law. Then ask them whether they feel police officers give their fellow police officers traffic tickets. Continue by asking if they feel this is a double standard. And then conclude by asking again if they believe that the law should be applied equally to all persons. These questions force the jurors to consider that everyone should be treated the same. An officer’s testimony should be judged the same as any other citizen’s testimony.
§19:30 Step One—Identify the Leaders and Followers
The first task in jury selection is to identify who the significant players are in the jury pool.
Most jury deliberations are run by three or four strong personalities in the jury room. These persons are referred to here as leaders, with the other jurors described as followers.
The leaders are fairly easy to identify. The president of the bank is going to have a lot more to say about the outcome of the case than the 18 year old college student. Generally jury leaders will share some of the following traits:
- Their jobs require leadership or significant decision making.
- They tend to be better educated.
- They are well-spoken, or at least are comfortable speaking in public.
- They have served on juries before and believe they have some expertise on the subject of jury duty.
- Financially they tend to be more successful.
- They are gregarious, and people tend to like them.
- They have opinions on many subjects and do not mind proffering opinions during voir dire.
§19:31 Step Two—Rate the Potential Jurors
Once the potential leaders are identified the next challenge is to rate the jurors. This proves to be considerably more difficult than determining who is a leader or follower.
Proper rating of the leaders is more critical than an exact assessment of someone who is likely to be a follower. The leaders need to get heightened scrutiny because by definition they will have more sway in the outcome of the jury deliberations. A mistake in the assessment of a leader may be unrecoverable.
The types of jurors that tend to be more favorable to the prosecution and to the defense are categorized below. These categories are generalizations subject to great deviations, but they are useful.
- Former police officers.
- Nurses and other medical personnel.
- Firefighters and paramedics.
- Elementary school teachers.
- Non drinkers.
- Human resource workers.
- Recovering alcoholics.
- Security guards.
- Insurance workers.
- Members of MADD or SADD.
- People who work in alcohol or drug recovery programs.
- Bitter persons.
- Court clerks and court personnel.
- Persons who are overly concerned about losing what they have in life.
- Drunk driving victims.
- Compassionate people.
- People who drink alcohol (especially beer drinkers).
- Smokers (most smokers tend to drink).
- People in the arts.
- Golfers (the 19th hole is a part of the sport).
- Risk takers.
- Single people.
- Real estate agents.
- Sport fans.
- Construction workers.
§19:32 Step Three—Decide Who to Strike and in What Order
The final step is to list the jurors you want to strike and the order in which you will exercise your peremptory challenges.
The leaders who you believe will not support your side are at the top of your juror strike list. These jurors are then arranged with the jurors you are most confident the opposing counsel will not strike,and become the jurors at the top of your strike list. In this way you leave open the possibility that the other side will strike one of the jurors you have on your list before you have to exercise that option. It is always a pleasant surprise when this occurs. Remember jury selection is not an exact science. The prosecutor may dislike one of the same jurors as the defense. Give the prosecutor an opportunity to move first by placing your less obvious challenges down your strike list.
Next, follow the same process with jurors you have labeled as followers. The only difference is that you may not be able to challenge all of the followers you dislike because of the limited amount of challenges you have. Since you are inevitably going to have to live with someone on the jury that you do not like, it is better that the person be a less significant voice in the jury room than the leading provocateur.
Include your client in these determinations.
Clients usually have a keen sense of who does not like them. They also have to live with the jurors who are going to decide their fate. You generally do not want someone on the jury that the defendant abhors. Finally, engaging your client in the jury selection process (which will occur in front of the jurors at counsel table) shows the jurors that you have confidence in the client’s reasoning. There is a subtle suggestion here that the client is not the irresponsible person claimed by the prosecution.
Donald Bartell is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around the state on DUI trial tactics. He has been asked to participate in the California DUI Lawyers Association and National Collegefor DUI Defense’s jury research project investigating what arguments resonate with jurors in drunk driving cases. He is the author of Attacking and Defending Drunk Driving Tests, from which this article is excerpted.