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CHAPTER 12: OUTLINE OF A TRIAL - Table of Contents

12.1 - Introduction12.2 - Pretrial Matters12.3 - Jury Selection12.4 - Opening Statement12.5 - Prosecution Case-in-Chief12.6 - Motion For Judgment of Acquittal/Directed Verdict12.7 - Defense Case-in-Chief12.8 - Rebuttal and Surrebuttal12.9 - Witness Examination12.10 - Jury Instructions12.11 - Closing Argument12.12 - Jury Deliberations12.13 - Motions For Mistrial12.14 - Miscellaneous Issues

12.3 JURY SELECTION

INTRODUCTION

The selection of the jury in a criminal case is an important and difficult process. Jury selection is also known as voir dire, meaning to see and to speak, or to speak the truth, depending on whose translation you accept. Voir dire is the attorney's first opportunity to speak with the people who will decide the fate of the litigants. The jurors' first impressions are very important. It is also the attorneys' only opportunity to get feedback from those same people before they decide the case.

Most jurors, of course, walk into court with little or no experience with the justice system. Their understanding of that system comes from what they have heard, read, or seen on television. Their understanding is, therefore, often biased, incorrect, and based on misperception. The purpose of jury selection examination is to enable the lawyers to determine whether any prospective jurors are possessed of beliefs that would cause them to be biased in such a manner as to prevent the parties from obtaining a fair and impartial trial.

To call this process "jury selection" is inaccurate. Counsel does not really 'select' a jury; counsel merely eliminates from the jury those people who seem least sympathetic to their side. From the court's point of view, the purpose of jury selection is simply to find six or twelve people who can "well and truly try this case". Trial courts want to get the jury seated so that the trial can begin and they can move their docket along. Normally, a court will be inclined to seat a prospective juror, even if that juror admits to certain biases or preconceptions, as long as that prospective juror indicates that he or she can set aside those biases or preconceptions, follow the court's instructions, and be a fair and impartial juror.

Jurors are required to take an oath before the court and attorneys question them. If the court discovers a juror lied, this may justify removing that juror and replacing her or possibly declaring a mistrial.

A juror's assurance that he can put aside his or her preconceptions does not necessarily mean he isn't biased. General questions such as "Is there any reason you cannot fairly and impartially try this?" may not be adequate to fulfill the court's obligation to let counsel get at underlying bases reflecting on bias, prejudice or other suspect factors.

The right to question prospective jurors is not without limitations. The trial court retains discretion to evaluate the propriety of questions to potential jurors and to generally regulate the procedure. Restricting counsel by putting reasonable time limitations on the process and by limiting the use of hypothetical questions has also been approved.

JURY SELECTION GOALS

The general goals of jury selection are much the same for both the prosecution or plaintiff and the defense: 1) to educate the jury about general principles of applicable law and procedure; 2) to educate the jury about the specific prosecution, plaintiff or defense principles that are involved in the case at hand; 3) to humanize the defendant or the victim or other client; 4) to gain the trust of the jury; and, 5) to get information with which the attorney can intelligently exercise peremptory challenges.

An example of general principles, in a criminal case, is the concept of proof beyond a reasonable doubt. The defense will often emphasize that this burden is the highest burden in law, and that our system of justice demands an acquittal if the jurors have a reasonable doubt, hoping to select those jurors who agree strongly with this principle. The prosecution, on the other hand, will emphasize that this burden is less than proof beyond 'all doubt' and make sure that the prospective jurors understand that not every doubt is a reasonable doubt.

Many prospective jurors enter the courtroom with a bias in favor of one side or the other. Another goal of the lawyers is to eliminate those with the worst biases, educate the remaining jurors, and minimize the effects of those biases. For example, the prosecution in a criminal will try to eliminate those potential jurors who have biases against prosecutors or law enforcement. The plaintiff's lawyer in a personal injury lawsuit may eliminate those jurors who believe that many plaintiffs fake injuries or sue over trivial slights.

Many jurors may look more favorably on a certain type of fact situation. For example, one prospective juror might feel strongly about the right of a person to defend him or herself, while another juror might feel strongly that a person should "turn the other cheek' rather than resort to self-defense. A defendant in a criminal case who claims that he argued in self-defense would prefer the juror who believed strongly in the right of self-defense, while the prosecution would prefer the other juror.

Jury selection is not a science, and no one should feel badly if they are excused from jury duty in a particular case. The fact that a juror might not be 'right' for particular case is no reflection on that person. A prospective juror who lost a loved one in an industrial accident probably should not sit as a juror in a case in which the same sort of claim is being made. That is no reflection on the integrity of the prospective juror. In addition, lawyers often rely on gut feelings about prospective jurors and these gut feelings are probably wrong as often as they are right.

GENERAL JURY SELECTION PROCEDURE

The jury selection procedure is set out in C.R.S. § 16-10-101, et seq., and Crim. P. 24. The entire process begins when the jury commissioner sends out jury duty notices to citizens in the venire. The venire may be the city, the county, the district or the state depending on whether the court to which the jurors are being summoned is a municipal, county, district, or federal court.

Many of those who are summoned immediately phone in and try to get out of jury duty. Most of these excuses are rejected, although some people may be allowed to postpone their jury duty. The prospective jurors report to the jury commissioner the morning of trial, view a video about jury service, hear some remarks from the jury commissioner or a judge, and eventually are sent to whichever courtroom has need of them.

When the jurors arrive, the trial judge will generally give a brief summary of the case, including an introduction of the participants, a description of the charges or claims, and an outline of trial procedure. The judge will give the prospective jurors an oath requiring them to respond truthfully to all of the questions asked of them. The clerk or bailiff will then summon a number of the prospective jurors into the jury box.

The general order of questioning is that the court goes first, followed by the prosecution, then the defense. In a civil case, the order is court, plaintiff, defense. Different judges follow different procedures. The following is an outline of typical procedure.

The judge or court clerk will call out a specific number of names and seat these people "in the box", meaning in the jury box. The number of people called into the box depends on the number of jurors needed for the trial - generally twelve for a felony and six for a misdemeanor or civil case - and the number of alternates, if any, the parties have decided to seat.

The trial judge will do an initial inquiry of these jurors, getting out basic information such as name, occupation, marital status, etc. The judge will also inquire as to the reasons why a person might be disqualified as a juror that are set out in the statute and rule governing jury selection. Some judges will then turn the voir dire over to counsel, while others will conduct more voir dire themselves. Judges who do conduct more voir dire generally limit it to fundamental principles, such as the presumption of innocence and the burden of proof. The prosecutor or the plaintiff is then given the opportunity to voir dire these prospective jurors, followed by the defense lawyer. This is often called panel voir dire.

When a lawyer finishes panel voir dire, the lawyer will either "pass the jurors for cause" or challenge one or more jurors for cause. A challenge for cause is an objection to a prospective juror based upon narrowly specified, provable, and legally cognizable bases for partiality in reaching a verdict in a particular case or inability to perform as a juror. Parties are not limited in the number of challenges for cause they may exercise.

If necessary, opposing counsel can ask questions of the challenged juror in order to decide whether or not to oppose the challenge for cause. Some courts allow these challenges for cause to be made during (rather than after) the panel voir dire; if the court follows this procedure, it will allow defense counsel to voir dire the challenged juror at the time the challenge is made. Such challenges may be made for mundane reasons, e.g., the juror has a small child at home and has no day care, or may be based on more fundamental concerns such as racial bias or exposure to prejudicial pretrial publicity.

Whether a challenge for cause is made during, or at the conclusion of, panel voir dire, the Court will give both sides an opportunity to question the juror, and may question the juror itself. The Court may need to hear argument about the juror's qualifications, and will hear usually do so at the bench. When a juror is excused for cause, the clerk or bailiff will summon a replacement juror.

In Colorado, the grounds for a challenge for cause are set out by statute and court rule and require bias of some sort. Bias implied by law and actual bias relates to specific relationships - debtor and creditor, for example - between a prospective juror and an interested party or participant in the case. Actual bias is that which prevents the juror from deciding the case impartially and without prejudice to a substantial right of one of the parties.

At the conclusion of the prosecution's or plaintiff's voir dire, defense counsel is allowed to question the jurors. The same procedure as to challenges will apply.

When reviewing a trial court's ruling on a challenge for cause to a prospective juror, appellate courts give broad deference to the trial court's finding of fact. The trial court is in a better position to observe the manner in which a juror responds, and to make a determination whether that juror can truly be fair and impartial. But the trial court's findings must have support in the record.

Once both sides have finished their panel voir dire and the challenges for cause have been ruled upon, the process of exercising peremptory challenges begins. A peremptory challenge need not be based on some articulable or demonstrable bias, but is instead based on a belief by counsel that there is something about the prospective juror that makes counsel prefer that the juror be replaced. As long as peremptory challenges are not based on the race of the prospective juror, counsel has virtually unlimited latitude to challenge any juror for any reason. Counsel need not state the reason, unless there is an indication that counsel is, in fact, using peremptory challenges in a racially biased fashion. C.R.S. § 16-10-104 provides that counsel shall have ten peremptory challenges in a capital case, five challenges in a felony case, three challenges in a misdemeanor case, and three challenges in a civil case.

Each time a juror is excused under a peremptory challenge, a replacement will be summoned and both counsel will get an opportunity to voir dire that replacement.

If an attorney believes the trial court has improperly limited voir dire, or improperly denied a challenge for cause, that attorney must exercise all of the available peremptory challenges in order to pursue the matter on appeal. Failure to exercise all challenges will result in an appellate court finding any error to be harmless.

Depending on the anticipated length of the case, the court may select one or more alternate jurors. These jurors will become members of the jury if one of the regular jurors becomes unable to proceed. The alternates sit with the jury, hear all of the evidence and arguments, and are discharged only if all of the regular jurors indicate to the court that they are able to retire and deliberate at the close of the case. Sometimes, alternate jurors are asked to stay even after the jury begins deliberating, in case a juror becomes unable to proceed during deliberations. A violation of approved procedure in the selection of the alternate will not result in a reversal unless the party can show that it was prejudiced by the violation.

Often, the inquiry may lead into questions of a personal or embarrassing nature. Counsel usually assures the jury that the inquiry is not meant to be embarrassing, but that certain questions must be asked. Usually, the court will allow questioning on sensitive issues to take place in chambers. This procedure, called sequestered voir dire or in camera voir dire, should also be used whenever there is a danger that a juror's answers might taint the remaining jurors.

Courts hearing civil cases, as well as some courts hearing criminal cases, use a variation of this procedure for selecting a jury. Under this general civil procedure for selecting a jury, twelve jurors are called into the jury box to select a six-person jury. Both sides inquire in the same fashion outlined above, and jurors who are successfully challenged for cause are replaced in the box. Eventually, twelve jurors who have been passed for cause remain in the box. Both sides are then required to exercise all three of their peremptory challenges in alternating order, until six jurors remain.

SPECIFIC PROBLEM AREAS

Challenges to the composition of the panel. A challenge to the composition of the jury panel based on an allegation of racial discrimination must be made within seven days of the discovery of the grounds for the challenge.

High publicity cases. The Sixth Amendment gives the criminal defendant a right to be tried before an impartial jury. In cases accompanied by pretrial publicity, the trial judge may require extensive voir dire examination of prospective jurors to determine if they have been influenced by the media attention. A juror's assurance that he can lay aside opinions of partiality are not enough to defeat a claim by a criminal defendant that he was denied his constitutional right to a fair trial. "Where a defendant demonstrates the existence of a pattern of deep and bitter prejudice throughout the community where he is to be tried, a juror's assurance that he will be fair and impartial is not conclusive."

Where there has been substantial publicity, the court must question the jurors with particular care to determine to what news accounts the jurors have been exposed. Sometimes during this questioning, it becomes clear that an impartial jury will be difficult to assemble. If this is the case, the defense may want to request a change of venue. Typically, this should be handled through a pretrial motion. However, it could be raised at this point as well.

Racial prejudice of jurors. The Fourteenth Amendment requires interrogation on matters involving substantial prejudice. There is a right to inquire concerning prejudice against a person based on race. The judge must allow interrogation into the subject and racial prejudice, and counsel has a duty to make diligent inquiry into the existence of potential prejudice.

Misuse of peremptory challenges based on race of juror. As noted above, counsel generally have an unlimited right to exercise peremptory challenges. However, the 6th Amendment to the United States Constitution and Article II, Section 16 of the Colorado Constitution have been held to prohibit counsel from purposefully and systematically excluding prospective jurors on the basis of race. If a party believes that opposing counsel is exercising peremptory challenges on the basis of race, the party must bring that claim to the attention of the trial judge. If the trial judge believes that a prima facie case of improper use exists, the trial judge will ask the party that challenged the juror to explain the challenge. If the party that challenged the juror provides a legitimate, non-racial, explanation for the challenge, the challenge will be allowed to stand. If not, the challenge will be denied.

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