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My experience is limited to California and your lawyer is best suited to explain what is likely to happen in your situation. Generally, the judge will order up a pool of prospective jurors from the jury assembly room. These men and women will be screened for “hardship” as in, no pay for jury service, no one to care for young children or prepaid vacations.

The court clerk will randomly select 12 names. The judge, the prosecutor and the defense attorney will question those 12 jurors. Sometimes a case-specific juror questionnaire is proposed and agreed upon by both sides. After the questioning is completed, lawyers may “challenge” individual jurors for “cause” as in, those prospective jurors have disclosed information or have expressed strong biases and/or prejudices that the judge rules make it unlikely those jurors can be fair and impartial.

Mounting cause challenges and arguing for and against them is possibly the most critical skill your lawyer brings to the jury selection process. Why? Because every successful challenge for cause means one less juror he or she will have to remove during the next stage, that of exercising what are called peremptory challenges or “preempts.” Each side is permitted a fixed number of “preempts.” In a standard murder trial, in state court, ten apiece are allowed, but in Federal court with 12 jurors, maybe fewer.

Some people would say that predicting the votes of jurors is an exercise in futility. Yet, since we MUST pick a jury, we need to apply our very best effort to select people who will listen to our side. So that argument is moot: presented with the task, we do what we can do to maximize our chances for success.

Since the verdict must be unanimous, if we cannot achieve a full acquittal, we try for a “hung” jury (jurors cannot agree).

If that surprises you, understand that it is much an uphill battle to win these cases when you are up against the prosecutor and the gravitas he brings to the courtroom, not to mention the law enforcement personnel who will be testifying against you. No matter how much you like cops, that’s their job. If we achieve a “hung” jury, a mistrial is declared and the prosecutor may elect to dismiss the charges against you. Or he may not, depending on a variety of factors including public sentiment, politics, and the jury “split,” e.g. ten to two vs. six to six.

That is a very brief and generalized description of the process. You need not concern yourself much, as your lawyer and his team will handle this portion of the proceedings, which will last on average anywhere from two to five days. Discussing the development of juror questionnaires is outside the scope of this article, but is always more beneficial to the defense than to the prosecution, and we can discuss it in a later article. Utilizing one can actually save time for the court in a homicide trial and judges are often receptive to them given the high stakes involved in this type of criminal trial.

Much of this is beyond the defendant’s control, but there are aspects of your own behavior that you should control if you are ever in the defendant’s chair. These concerns involve non-verbal messages of which many people are not consciously aware, but when we see others make these unconscious gestures, we draw conclusions about that person, nonetheless. I will cover those details in the next installment of this article in the February edition of this journal.

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