How would you like to have your fate in the hands of 12 strangers? It happens every day in the US, and it scares lawyers to death.

Who determines the people who sit in the jury box? For the most part potential jurors come from a random pool of registered voters or driver license holders who live in the  judicial district of the court where the trial will occur.  But the members of that pool are winnowed down to the actual jurors who will hear the case by a process known as voir dire.  During voir dire, the prosecutor and the defense attorney question potential jurors and have an opportunity to exercise “strikes.” Each attorney has a certain number of strikes and has to decide how she will use them.  So jury election is really more a matter of juror elimination.  The attorneys hope to eliminate as  many bad jurors as they can, and they are stuck with the ones that remain. 

Exercising strikes is both a science and an art form.  In high profile cases, the lawyers may employ a whole team of jury consultants to assist them in making their strikes (if they have the money to afford them).  In other cases, the lawyers will exercise their strikes by the seat of their pants, hoping to make the right guesses about individual jurors.

In the world of jury selection, lawyers often face real strategy decisions, especially when they are about to run out of strikes and have to choose between the better of two bad choices. Since the other side doesn’t know which juror his opponent will strike, this often becomes a chess game, a high-stakes poker gamble.

Lawyers use stereotypes when they use their strikes.  A prosecutor wants a jury made up of conservative businessmen, shop-owners who may have experienced robberies, members of MADD.  Defense attorneys want women and members of minority ethnic groups, groups that often find themselves on the receiving end of the criminal justice system.

What is the jury’s role?  The jury decides the facts of the case. They almost certainly will hear two conflicting sets of facts, and they have to choose which set they believe.  Once they decide what the facts are, then they have to apply the law to those facts.  The judge tells them what the law is. At the close of the evidence, the members of the jury adjourn to the jury room, select a foreperson and begin their deliberations.  In a criminal case, their decision must be unanimous, one dissenting vote will result in no verdict, what is known as a “hung jury.” Probably the greatest fictional portrayal of this process is the classic film “Twelve Angry Men,” where one member of the jury over the course of a long deliberation persuades the other eleven to change their minds and vote “not gulty.”  Emotions often run high in the jury room.  When I defend criminal cases, I always love it when I hear jurors yelling at each other behind closed doors.  That’s almost always a sign of “reasonable doubt.”

So your assignment for Tip 5 is: Write a scene where the prosecutor in a drunk-driving case questions persepective jurors.  Then write a scene in the same case, where the defense attorney has his turn to conduct voir dire. 

You will see how the lawyers’ approaches will vary if they hope to evoke responses that enable them to make good use of their precious strikes.