Recently a criminal lawyer told me that he, ‘was over jury trials”. Said he had not tried a case to jury in over two years.
What? Is that possible and still be an effective dui attorney or criminal lawyer? No way. As a dui lawyer, you will end up trying cases, regardless of jurisdiction. For two reasons. First, if you never try cases, then you have a reputation as someone who never tries cases. The State Attorney or prosecutor then has precisely zero incentive to work out a deal with you. A prosecutor who knows the criminal defense attorney will not go to trial has nothing to lose if he or she decides to decline to, say, reduce that DUI charge to a reckless driving. So, a dui lawyer who does not try cases will not get the deals that a lawyer who does try cases will get.
Second, you will have clients that cannot, absolutely cannot, have a DUI on their record that the State Attorney will not reduce their charge. Your client hired you because he cannot have a DUI. State wont budge. Judge has no authority to throw out charges. Then, you must go to trial.
Caveat: non-jury trial should be a rarity. You need to really, really know your Judge. By convincing your client to go to trial in front of the Judge you are convincing him to forfeit his right to a trial by his peers. When study after study reflects that a defendant is more likely to be exonerated by a Jury that a Judge, you need to pay attention.
With that said, this post is simply a few bits of advice for lawyers prepping for Jury trial. We are always looking for new ideas, and maybe some of these will be of help to some of you. I am always on the lookout for good nuggets of jury selection truth, so feel free to write in.
So here are a few Jury Selection rules that our dui lawyers utilize in preparation for every case.
1. Have a “cheat sheet” of who you absolutely do not want on the Jury
OK. So this is the stereotyping part of jury selection. If you have found a better way, please let me know. But with potentially 30 jury panelists on a DUI charge, and somewhere between 20-45 minutes to ask questions and get to know these folks, I think you have to sterotype in part. If this seems counter-intuitive, read Malcolm Gladwell’s, “Blink”.
Here is what we do: We think, well in advance, of who we would love to have on our jury. Our prototypical jury member. More importantly, we think about who we do not want to have. We right it on a cheat sheet. We then go into the courtroom, use the jury questionarres, and put solid Y or N’s next to 5-10 of the panelist who meet our criteria. This is before a single question is asked. We look at every panelist, and see if our gut first impression confirms our feelings.
Then we have solid yes and no’s for some panelists. Not everyone, but enough that we can focus our attention on a smaller number. Dig deeper into these ones. A rule of thumb is that a Yes can be turned into a No, but a No is rarely, if never, turned into a Yes.
A few quick good jurors in a DUI case with a refusal: Salespeople, career women, nurses, North Eastern Men, and grade school teacher. Extra plus for special needs teachers.
A few quick nos: Past law enforcement, military (especially when more than 2 year stint), victims of DUI (duh), People with a dui on their record (seems counter-intuitive, but if they are really on your side, they will get caused by the State), divorced women, older women.
2. Consider having a mini tabbed “book” of important cases for the Judge in Jury Selection
This one I feel strongly about. Years ago, I attended a DUI Seminar where one of the presenters discussed creating a tabbed index of cases for his fourth amendment motions to suppress. The idea is that there were about 20-30 cases, mostly county cases with a smattering of district court of appeals cases, that were used over and over again. He tabbed the cases, created an index, and brought this into his motions. It allowed him to flip to the cases quickly (and the Judge too) during argument, and gave him more credibility with the Judge.
Great idea. I stole the idea, and applied it to Jury selection. Specifically for cause challenges.
Judges, especially in misdemeanor cases (ie. DUI) hate cause strikes. Well, they don’t hate cause strikes, but the jury panels are often much smaller in misdemeanor cases (20-30), and if too many prospective jurors get struck for cause, then the panel will be “busted”, and the case will need to be tried another day. Judges hate this.. no Judge wants to waste part of their morning and not get the case off of their docket.
As a result, even well meaning Judges might be less inclined to grant your cause challenge if you don’t hold their feet to the fire. Remember: In DUI cases, a tampa dui attorney only gets 3 preemptory challenges (that’s three people from the panel that can be thrown off the Jury for no reason at all). It is imperative to cause every Juror that may not be fair and impartial to your guy. So how does a book of cases help?
Simply put, hardly any lawyers put case law on the record for cause challenges. They blow smoke about ” a reasonable doubt as to the Juror’s ability to be fair and impartial” and that’s it. This sort of argument is not very strong in front of a Judge, and the Judge may dny the cause challenge. Or even worse, the Judge will say that you /the Judge/ or the State rehabilitated the prospective Juror. (I have always thought the idea that a Juror that could not be fair and impartial could then be rehabilitated by asking the right close ended question was ludicrous. Imagine: “So, Mr. Jones, I understand that your entire family was killed by a drunk driver, and you vowed that you would revenge their death in anyway possible, but I am asking you today (wink wink), can you be fair and impartial in spit of that past”? The propsective juror may well answer yes because he knows the answer is supposed to be yes. And everybody wants to give the right answer.
So, gather up your ten – fifteen best cases for fair and impartiality: a couple for reasonable doubt, burden of proof, victim of crimes, family in law enforcement, ect. ect. Tab them. Create a book. And when arguing to the Judge, and he seems to be leaning in favor of allowing your cause challenged prospective juror to stay, whip out the case law. Read it on the record. The Judge will go your way. It works. I promise.
3. Reasonable Doubt! Don’t Forget Reasonable Doubt!
This I feel strongly about. Somewhere along the line, dui lawyers and criminal defense attorneys who do not try many cases start to worry that they will seem like they are hiding behind the law if they spend too much time on reasonable doubt. ”They will think I am hiding behind the law” they say.
Yeah. So what?
The law of burden of proof beyond a reasonable doubt is the best tool you have in a criminal case. Bar none. DO NOT hide from it. Embrace it. Then, when talking to the Jury, ASK THEM if they think you are hiding behind the law? It is the elephant in the room, you say, and you got to ask. Watch how they react. Some jurors will be putt off that you even asked. This is America, they will say. Let them make the case for you.
Also remember: You have the absolute right to ask every juror if they can follow the law regarding reasonable doubt. Even with the toughest of Judges, you can ask a variation following question: ”If the case is over, and you do not have an abiding conviction of guilt, and therefore you have a reasonable doubt as to whether the state proved its case, will you follow the law”. You have a right to ask this variation to every juror. Ask as many as you want. And if the State Attorney objects to this (for whatever reason), remind the Judge that case law says you could ask all of the Juror members… but you will of course not do that, provided he tells the State Attorney to quiet down.
And make sure you have a case to that effect in your mini booklet for jury selection.