Jury Selection / Voir Dire in Rape and Indecent Liberties Trials

Jury Selection / Voir Dire in Rape and Indecent Liberties Cases may be the single most important part of the entire trial. The fact of the matter is most jurors already know whether they are leaning toward a verdict of Guilty or Not Guilty by the time the lawyers have completed Opening Statements. Think about that: most jurors are already favoring the prosecution or the defense before a single witness has testified. If a criminal defense lawyer has failed to identify and eliminate jurors who are aligned with the prosecution and victim during Jury Selection, then no amount of clever cross-examination or impassioned argument will ever change those jurors’ minds.

How Does Jury Selection Work in Criminal Cases?

The term Jury ‘Selection’ is a misnomer. Neither the Prosecution nor the Defense gets to ‘select’ jurors that they believe are favorable to their position. If both sides were allowed to select the 6 prospective jurors who most closely aligned with their theory of the case, virtually every jury trial would be deadlocked in a 6 – 6 ‘Hung Jury.’

Instead, the Prosecutor and the Defense Attorney are each allowed to DE-select a certain number of jurors from the panel once all challenges for cause have been resolved. The lawyers strategically de-selection certain jurors by exercising ‘peremptory challenges.’ The number of ‘peremptory challenges’ each side is allowed to exercise is dependent upon the severity level of the charges. The more serious the charges are – the more peremptory challenges each side is allowed to exercise.

Prosecutors are paying close attention to prospective jurors who expressed feelings of mistrust of law enforcement or of the government. Defense counsel is trying to identify ‘law and order’ jurors who presume anyone accused of a crime Must have done something wrong. By allowing both parties to eliminate the most polarized potential jurors through use of ‘peremptory challenges’ the legal system empanels juries that have a higher likelihood of agreeing unanimously on their ultimate verdict.

What Is a Challenge for Cause?

Imagine a room full of prospective jurors for a trial where the Defendant has been accused of Rape or Indecent Liberties with a Child. Now, imagine one of the prospective jurors raises their hand and says: “I was raped in college at a house party” or “I was molested as a child by a relative or a neighbor.”

It is not difficult to understand how someone with those life experiences would be understandably biased in favor of the prosecution and prejudiced against the Defendant. If someone has a life experience or a deeply held personal or religious belief that causes them to align closely with one party before hearing any evidence, the Court has the authority to release that person from jury duty ‘for cause.’ When the Court identifies a reason that justifies releasing a juror ‘for cause’ that juror is excused from jury duty without costing either the prosecution or the defense one of their limited peremptory challenges.

Experienced Defense counsel should have questioning strategies prepared well in advance to encourage prospective jurors to express their beliefs and opinions in a manner that encourages the Court to release those jurors ‘for cause.’ This allows Defense Counsel to preserve and maximize the limited number of peremptory challenges allowed in each trial.

What Things Should a Defense Lawyer Ask During Jury Selection?

Just as every case is unique – and every jury panel is unique – the questions that experienced Defense Counsel will rely on to identify risky jurors is also unique. The Prosecution always goes first during Jury Selection. And in most cases, Prosecution Jury Selection is slow and tedious. Defense Counsel should always take notes during the Prosecution’s Jury Selection and identify risky jurors: not only through actual answers to questions – but also through facial expressions and body language. In many cases, I have been able to identify the Jurors that I ultimately released with Peremptory Challenges during the Prosecution’s Jury Selection.

As Defense Counsel, I believe that the direct approach is always best. Particularly when the Prosecution’s Jury Selection has been lengthy and tedious, I will ask the Jury Panel: “Now that you know what this case is about – now that you know my client has been accused of Rape (or Indecent Liberties With a Minor) how many of you know that you do NOT want to serve in this Jury?” Direct questions like that virtually ALWAYS generate responses from prospective jurors. And once one juror raises his or her hand and expresses their feelings, it ‘opens the door’ for others to do the same.

Visuals always help to generate interest and heighten attention. In courtrooms where I have access to Audio / Visual, I will print the following phrases to display one at a time to the Jury Panel and ask that everyone who has any reaction at all to share their feelings:

#MeToo

#BelieveWomen

Jeffrey Epstein

Harvey Weinstein

How Must it Feel to be Accused?

In every Jury Selection for every trial, I will ALWAYS ask the prospective jurors: “How many of you have ever been accused of something that you know you did not do?” I will ‘soften’ that question to invite additional participation: “This does not need to be a serious crime. How many of you have been accused of cheating on a test at school, or accused of cheating on a boyfriend / girlfriend / spouse?” The point is to get the jurors to share with each other times that they were accused of something that they know they did not do.

Once I identify a juror with a particularly meaningful story of being wrongly accused, I ask that juror while pointing at my client: “How do you think he is feeling right now?” This type of question is very effective at slowing the rush to judgment and highlighting to the entire jury panel how important it is to keep an open mind throughout the trial.

Should I Use a Jury Consultant?

Jury Consultation has grown into an enormous legal support industry. Between multi-million dollar civil lawsuits and Off-Grid Life in Prison Criminal cases, the stakes at trial have never been higher. At the same time, social media has exploded and virtually everyone has multiple social media accounts across multiple platforms. Far too many people have their entire social media presence open for public access. Let’s be honest – what good is social media if old classmates and long-lost acquaintances cannot easily log in to see how impressive our lives appear to be online.

Most Jury Consultant firms will conduct a thorough AI-Assisted ‘deep-dive’ of the social media content of all persons within the Jury Pool and provide summary reports for each juror for the lawyer who has engaged their service. Some Juror Consultants will even draft sample questions for the Jury Panel so the lawyer is simply reading a script. This can be a major ‘time saver’ for a busy Defense Lawyer during the final days before trial. But this is also a very risky way to go about what may be the single most important part of the trial. Often times, the lawyer trying the case understands nuances about the witnesses and evidence in the case that a Juror Consultant does not. I have always believed that the lawyer responsible for trying the case is in the best position to identify subtle qualities that may make a prospective juror a very bad choice for any given trial.

Also, different jurisdictions have different rules about what counsel may – and may NOT – do when accessing and/or reviewing social media content of prospective jurors. The Lawyer is always accountable for compliance with all local rules in each jurisdiction addressing access to juror’s online information. Any lawyer relying on the assistance of a Jury Consultant must be certain that the consultant firm knows what is and is NOT allowed while researching prospective jurors.

You Will Not Win a Trial Without the Right Jurors

If Defense Counsel does not prepare thoroughly and exhaustively for Jury Selection – if the wrong 12 jurors are in the jury box when trial begins – NO amount of clever cross-examination or impassioned argument with result in a finding of Not Guilty.

Like every facet of trial practice, Jury Selection is a matter of experience. No lawyer can expect to identify all of the nuances that make for favorable or risky jurors in only one or two or even three jury trials. I have jury tried over 30 Off-Grid Life in Prison Jessica’s Law counts to either acquittal or dismissal following mistrial / hung jury. I have jury tried countless Acquaintance Rape and Date Rape trials. In each trial, I identify new issues during Jury Selection that I incorporate into future trials.

Both the Law and the Digital Landscape are constantly changing. Issues and prospective questions that were indispensable in Jury Selection not long ago may be factually or legally irrelevant today. As with all facets of trial practice, Jury Selection is equal parts art and science. Experienced Defense Lawyers must constantly evolve to ensure that the 12 jurors who decide their client’s fate are receptive to the arguments and defense theories that are core to their client’s freedom.