Monthly Archives: June 2016
Leaders, Loners and the Art of Jury Selection.
Often times you cannot eliminate troublesome jurors. This can be a real problem since developing challenges for cause against an unfavorable juror can be difficult and at times impossible. In such cases, you want to use your peremptory challenges against such persons if they will affect the outcome of your case.
In federal capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges. In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.
Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”). In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges. In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges. In all state civil cases, each side has 3 peremptory challenges. When several defendants are tried together, they must join their challenges. Indiana Jury Rule 18.
As to alternate jurors, one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated. Id.
So how does one make the best use of their peremtory challenges? Well if you cannot get rid of the juror for cause, then you have to figure out which jurors to focus on for purposes of exercising your peremptory challenges. I suggest that you focus on persons who are either loners or leaders. The bulk of people who make up juries are essentually followers. They will tend to go with the flow.
Ultimately persons who are natural leaders will exercise the greatest influence over the juror’s deliberations. It’s important to identify persons who either have leadership qualities or background traits which will lead other jurors to look to them for guidance. If a person has had prior jury service, then other jurors will naturally look to them for guidance as to what is happening in the court room and how to handle their deliberations. Likewise, persons who have assumed the role of leadership in either their profession or in outside organization will have the greatest likelihood of assuming a leadership role on the jury. Person who meet this criteria deserve special attention and need to be thoroughly questioned to make sure that they will not be a problem for your case.
Persons who are potential “loners” also need to be thoroughly questioned since they could hold up deliberations or force an undesirable compromise. Loners have a tendency to stand their ground and be unwilling to compromise or conform to the wishes of the larger group. I have had more than one jury where I have learned after the fact that a lone juror was a hold out for a particular verdict. Their staunch and unyielding position results in either a compromise verdict or a hung jury. When trying to identify a loner, you need to identify whether or not the person choses voluntarily to be a loner or is forced by circumstances to be a loner. Those who voluntarily decide to be a loner, act as a nonconformist and set themselves apart from the rest of society, can be a potential problem. Such persons are used to standing alone and may hold out for a particular verdict even though their opinion is unpopular and outnumbered by others.
Ultimately, you want to use your peremtory challenges on persons who will likely effect the outcome of your jury’s deliberations in an adverse fashion. So first look for the “leaders” and “loners” in your next jury panel.
When silence is golden… The tacit admission.
Indiana Rule of Evidence 801(A) provides:
A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person, and the person must have an opportunity to respond. 16 INPRAC § 7.9d Criminal Procedure–Pretrial. A tacit admission may be made when a person remains silent or makes an equivocal response to an accusation which the person would ordinarily be expected to deny. The accusation must be made in the presence and hearing of the accused person and the person must have an opportunity to respond. 12 Ind. Law Encyc., Evidence, §§ 135, 136; House v. State, 535 N.E.2d 103 (Ind. 1989)(held silence or equivocal response to assertion made by another, which would ordinarily be expected to be denied, is tacit admission, and the assertion and the words or conduct are admissible if reaction is not clear denial.), citing with approval to, Moredock v. State (1982), Ind., 441 N.E.2d 1372, 1374; Wickliffe v. State (1981), Ind., 424 N.E.2d 1007, 1009; Jethroe v. State (1974), 262 Ind. 505, 319 N.E.2d 133, 138–139. The chance to turn a person’s silence into a weapon should not be missed. It could be silence in the face of strong accusations made during the course of the meeting or even a judicial hearing. The key is to recognize situations which present themselves during the course of your investigation. The implied assertions for silence may be made during the course of custodial interrogation, during the course of a guilty plea or even during a sentencing hearing. Such instances may be pure gold for your case. So be alert.
The Barrister's Toolbox 