Confronting the Immigration Bias in Jury Selection
In their Trial Advocacy column, Ben Rubinowitz and Evan Torgan write: From a procedural point of view, the real goal of jury selection for the trial attorney is to preserve peremptory challenges. Careful use of both leading and open-ended questions can pave the way for insightful answers and, ultimately, confirm the prejudice of a juror for a "cause" challenge.
September 07, 2017 at 02:03 PM
29 minute read
It goes without saying that a thoughtful and well-planned jury selection is critical to the success of your case. When jurors walk into the room for jury selection, they bring with them years of attitudes and beliefs shaped by, among other things, family, politics and the media. While a trial lawyer may have great confidence in his powers of persuasion to overcome these long held beliefs, the reality is that most jurors, although well intentioned, will evaluate the facts through their life experience. Indeed, many trial lawyers contend that a case can be won or lost during jury selection. They argue that your success in identifying and weeding out those jurors who have a prejudice against your client or his cause will determine the fate of your case. Although trial lawyers have no control over who will be called as a potential juror, the trial lawyer does have the ability and responsibility to identify and, hopefully, remove those jurors who cannot be impartial or those who start off leaning against your case.
Peremptory Challenges
From a procedural point of view, the real goal of jury selection for the trial attorney is to preserve peremptory challenges. In civil cases in New York each side is allowed only three peremptory challenges; however, each side is allowed an unlimited number of challenges for “cause.” The rationale for this is that to the extent a juror admits that he or she cannot be fair, the court is duty bound to exclude that juror. The exclusion of a juror for cause is generally left to the sound discretion of the trial court and not reversible. As the Court of Appeals has made clear, “the 'worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror'.” See People v. Johnson, 94 N.Y.2d 600 (2000). To the extent the trial lawyer can turn what would otherwise be a peremptory challenge into a challenge for “cause,” he has significantly increased the odds of getting a more favorable jury and one that will return a more favorable verdict. The techniques used in questioning the potential juror, exposing bias or prejudice, and turning a peremptory challenge into a challenge for cause is the real “art” of jury selection.
Given the time constraints in which jury selection must be conducted, jury selection must begin with a fundamental question before the attorney ever steps foot in the courthouse: What are my greatest fears? Or, put another way: Who can I not live with on my jury? While not all issues can be addressed during jury selection, those that are appropriate for inquiry should be dealt with head-on.
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
Trending Stories
- 1The Law Firm Disrupted: For Big Law Names, Shorter is Sweeter
- 2Wine, Dine and Grind (Through the Weekend): Summer Associates Thirst For Experience in 'Real Matters'
- 3The 'Biden Effect' on Senior Attorneys: Should I Stay or Should I Go?
- 4'That's Disappointing': Only 11% of MDL Appointments Went to Attorneys of Color in 2023
- 5'You Are Not Alone': 120 Sex Assault Victims Plan to Sue Sean 'Diddy' Combs
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250