Practical Jury Selection Tips

• Author: David M. Tanovich; David Paciocco; Steven Skurka
• Pages: 175-212

CHAPTER10

PRACTICAL

JURY

SELECTION

TIPS

10.1

THE

UTILITY

OF

USING

PEREMPTORY CHALLENGES

The

jury selection process, providing

as it

does

for

peremptory challenges,

is

premised

on the

assumption that counsel

can

make rational decisions

about

who

their better jurors will

be.

While

there

are no

foolproof meth-

ods

for

selecting

the

ideal juror, most lawyers believe that they

can

increase

their prospects

of

success

in a

jury trial

by

using

their

peremptory chal-

lenges

wisely.

They

believe that they

can

identify

the

best possible type

of

juror

for a

given case,

or at

least that they

can

identify

jurors

who

should

be

avoided.

The

routine spectacle

of the

jury

selection process

in

which

the

lawyers

study those jurors

who are

"called

to the

book"

and who

then

pass

judgment

on

their suitability

before

accepting

or

challenging them

is

ready

proof that

the

majority

of

trial lawyers

see

utility

in the

process.

There

are

lawyers

who

reject this approach

and

simply accept

the first

twelve

jurors

who are not

challenged

by

their opponent.

They

refrain

from

using their challenges because

they

are

convinced that

the

tools

of

jury

selection, being hunches, intuition,

and

"experience,"

are

incapable

of

pro-

viding

a

rational basis

for

predicting

how a

potential juror

is

likely

to see

the

evidence

in the

case.

Or

they

may

consider that, tactically,

they

will

present themselves better

in front of the

jury panel

if

they look accommo-

dating

and

accepting, while opposing counsel makes what

may

appear

to be

175

invidious

judgments about

the

suitability

of

those

who are

answering their

call

to

jury duty.

The

belief that rational choices

can be

made

in a

systematic

way finds

some

support

in the

social science literature, though there

are

detractors within

the

social science community itself. Proponents

of

scientific jury selection

(SJS)

point

out

that

cases

are won and

lost

at the

point

at

which

the

jury

is

selected.

According

to one

jury consultant,

Dr.

Covington,

"It is

impera-

tive

for the

trial attorney

to

master

the art of

jury selection. Many potential

jurors

have reached decisions regarding

the

case

and the

litigators within

a

few

minutes

of

exposure

to the

participants

..."

M.

Covington, "Jury Selection: Innovative Approaches

to

Both Civil

and

Criminal Litigation" (1985)

16 St.

Mary's L.J.

575 at

580.

Indeed,

Covington points

out

that "research

in the

social sciences indicates

that ninety percent

of the

juror's individual decisions

are

formed

prior

to

jury

deliberation,

and

that jury deliberation, contrary

to

popular

notion,

does

not so

much decide

the

case

as

contribute

to a

consensus."

M.

Covington, "Jury Selection: Innovative Approaches

to

Both Civil

and

Criminal Litigation" (1985)

16 St.

Mary's L.J.

575 at 580

citing

CJ.

Mills

&

W.E. Bohannan,

"Do

Personality

or

Peer Pressures Influence

the Way

Jurors

Decide" [1981] Champion

10.

While

social scientists have attempted

to

identify

a

"scientific" approach

to

jury

selection,

the

reality

is

that even

in the

United States, where

it is

becoming more common

to

hire jury consultants, lawyers tend

to

apply

no

science

whatsoever

in

selecting juries, relying

on

"instinct"

and

"experi-

ence"

and in

some

cases

on

stereotype,

often

including racist

or

sexist gen-

eralizations,

to

select their juries.

We

attempt,

in

this chapter,

to

collect

the

accumulated experience

of

coun-

sel

and of

social scientists

in

order

to

provide

as

much assistance

as

possible

in

terms

of how to

exercise

a

peremptory challenge.

As

will

be

seen, there

is

disagreement over most propositions.

For

this reason

we

chose

not to

exclude

those jury selection

"tips"

that struck

us as

preposterous

or

even

inappropriate.

There

is no

tried

and

true recipe

for

jury selection,

but we

hope that

the

following discussion will assist counsel

in

arriving

at the

deci-

sions

that

they

choose

to

make.

At the

very least,

it

should provide food

for

thought

and

assist

in

providing some structure

or

rhyme

or

reason

to

those

jury

selection decisions that

are

made.

176

JURY

SELECTION

IN

CRIMINAL

TRIALS

Practical

Jury Selection

Tips

177

10,2

RATIONAL

JURY

SELECTION: GUESSWORK

OR

SCIENCE?

10.2(a)

Experience

and

Stereotype

Most

jurors

are

selected

on the

basis

of

instinct

and

experience.

There

are

essentially

two

general kinds

of

criteria that

are

employed

by

lawyers.

First,

there

are the

generalizations

or

stereotypes about people

in

general,

assumptions about

how

persons

of a

given sex, age, occupation, social sta-

tus,

or

even race, colour,

or

creed

are apt to see the

case that

is

being tried.

Second,

there

are

judgments that

are

made about

the

juror

as an

individual,

including such characteristics

as

demeanour, comportment, dress, apparent

intelligence,

and

even physique. Each kind

of

judgment

is

fuelled

by the

lawyer's

own

beliefs

about what people

are

like,

as

well

as the

lawyer's expe-

riences

from

prior cases.

There

are at

least three problems with relying

on

these judgments.

The

first

and

most obvious

is

that

the

generalizations

that

are

relied

on may not

be

accurate.

They

may not be

accurate

as

generalizations

and in

some cases

may

be

invidious, being based

on

such

things

as

race, sex,

and

sexual per-

suasion,

constituting prohibited grounds

of

discrimination

in

most other

contexts. Moreover, they

are

just that, generalizations,

and

they

may

well

not

apply

to the

prospective juror

in

question.

It is

generally considered,

for

example, that police

officers,

including retired police

officers,

are

likely

to

favour

the

case

for the

Crown, perhaps even

to the

point

of

disregarding

the

evidence

or

evaluating

it

unfairly.

So

prevalent

is

this belief that most

provincial jury statutes

disqualify

police

officers

from

jury service.

Yet

Donald

Bayne,

QC, a

prominent Ottawa

defence

counsel, tells

of an

expe-

rience

he had

that

illustrates

the

point

that

such generalizations

cannot

always

be

relied

on. He was

selecting

a

jury

in a

case

in

which

his

client

was

charged with shooting

a

prison guard during

a

jail

break.

The

defence

was

self-defence.

Neither

the

shooting

nor the

jail

break

was

being contested.

A

challenge

for

cause

was

being conducted

to

determine whether

any

jurors

might,

because

of the

nature

of the

offence

and the

status

of the

accused,

be

unable

to

adjudicate

the

case impartially

on the

evidence.

Eleven jurors

had

been selected

after

a

number were eliminated

for

cause.

The

last juror

to

come forward

was a

retired

RCMP

officer.

To Mr.

Bayne's

surprise,

the

mini-jury

adjudged

the

officer

to be

impartial.

Mr.

Bayne

chose

not to

challenge this juror peremptorily,

for

fear

that

he

would alien-

ate

the

jurors

who

watched

as two of

their

fellow

jurors made

the

decision

that

the

police

officer

could

be

impartial.

In the

end,

the

jury acquitted

the

accused

after

the

officer

had

been elected

its

foreman.