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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.

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Use of Peremptory Challenges and Preservation of Challenges for Cause

The great thing about our system of democracy is when they call you for jury duty, you have to come… It’s an honor and a privilege. I was called and I’ve got to be here.    – – Antonio Villaraigosa

Pursuant to Indiana’s long-standing rule, a claim of error arising from the denial of a challenge for cause is waived unless that party used any remaining peremptory challenges to remove the challenged juror or jurors.   In Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983), the Indiana Supreme Court stated “[o]ur law on this issue is well settled. We have consistently held that to preserve any error the defendant bears the burden of demonstrating that at the time [he or she] challenged the jurors for cause,[he or she] had exhausted [their] peremptory challenges.” Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind. 2002). The rationale for this approach is that “where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venire person, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. To guide attorneys through the field of venire challenges, our supreme court devised a clear and predictable road map.  You must use any available peremptories to correct erroneous denials of challenges for cause if they are available. If on appeal you then prove both the erroneous denial and that you were unable to strike another objectionable juror because you exhausted your peremptory challenges, you are entitled to a new trial. Id. at 1237.

Failure to correct the problem yourself, if possible through the use of a peremptory strike, waives any error caused by the trial court’s denial of your challenge for cause.

Use of Peremptory Challenges and the Improper Exclusion of Juors

Ending racial discrimination in jury selection can be accomplished only by eliminating peremptory challenges entirely.  – – Thurgood Marshall

Number of Peremptory Challenges:  There’s no such thing as a free lunch and likewise, even the free strike of jurors provided by the use peremptory challenges is not its own costs and problems. However, there will be people that you cannot establish good cause to remove from the panel and will have to remove by use of peremptory challenges.  In 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.

Race:   Peremptory challenges based on race violate the juror’s Fourteenth Amendment right to equal protection of the law and require a retrial. McCormick v. State, 803 N.E.2d 1108, 1110 (Ind.2004); Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997). A defendant’s claim of racial discrimination in a peremptory strike triggers a three-step inquiry. See Bradley v. State, 649 N.E.2d 100, 105 (Ind.1995) (citing Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986)).

First, the trial court must determine whether the party has made a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96–97, 106 S. Ct. 1712. To make a prima facie case of purposeful discrimination, the complaining party must show that the excused juror was a member of a cognizable racial group and present an inference that the juror was excluded because of his or her race. McCants v. State, 686 N.E.2d 1281, 1284 (Ind.1997).

Second, after the complaining party presents a prima facie case of racial discrimination in the use of a peremptory challenge, the burden shifts to the opposing party to present a race-neutral explanation for striking the juror. Batson, 476 U.S. at 97–98, 106 S.Ct. 1712. A race-neutral explanation means “an explanation based on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality). Although the opposing  party must present a comprehensible reason and offer more than a mere denial of improper motive, “the second step of this process does not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767–768, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). If the reason is not inherently discriminatory, it passes the second step.  Id. “[T]he issue is the facial validity of the opposing party’s explanation. Unless a discriminatory intent is inherent in the opposing party’s explanation, the reason will be deemed race neutral.” Id. “[An opposing party] simply has to state his reasons as best he can and stand or fall on the plausibility of the reasons” proffered. Miller–El v. Dretke, 545 U.S. 231, 236, 125 S. Ct. 2317, 162 L.Ed.2d 196 (2005).

Third, the Court must determine whether the complaining party has established purposeful discrimination. Miller–El, 545 U.S. at 236, 125 S. Ct. 2317; Batson, 476 U.S. at 98, 106 S. Ct. 1712; McCormick, 803 N.E.2d at 1110. This third step involves evaluating “the persuasiveness of the justification” proffered by the opposing party, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. 1769.  Disparate treatment of similarly situated jurors satisfies this burden of showing the strike was racially motivated. Snyder v. Louisiana, 552 U.S. 472 (2008)(held  trial judge had acted improperly by allowing the prosecutor to peremptorily strike all African American jurors from the panel because the reasons given for striking the black jurors applied equally well to the white jurors the prosecution did not strike).

The analysis of Batson v. Kentucky has been applied in areas other than race and in civil cases. See Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)(civil case).  Below are some examples:

Gender:  J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994), (held women could not be systematically excluded from a venire).

Sexual Orientation: SmithKline Beecham Corporation v. Abbott Laboratories, 740 F.3d 471 (2014)(held in civil case distinctions based on sexual orientation are subject to the “heightened scrutiny” standard of review and that “equal protection prohibits peremptory strikes based on sexual orientation). Given the 7th Circuit’s scathing critique of anti-gay-lesbian-transgender restrictions on marriage and their application of heightened scrutiny as part of their equal protection analysis, it seems likely that a properly supported challenge on this basis would be upheld in our local federal courts.  See Marilyn Rae Baskin V. Penny Bogan,  ___  F. 3rd  ___ (7th Cir. 2014).

So chose wisely and exercise your challenges without improper animus or bias.

One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror?

20111004-080040.jpgJury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? Below is a checklist of reasons which can be used to disqualify a juror in Indiana Courts:

Jury Objection Chart 6

Case Law in The State of Indiana

“In criminal cases the court must sustain a challenge for cause if the prospective juror: … is a defendant in a pending criminal case.” Ind. Jury Rule 17(b)(2). However, Indiana appellate courts will reverse a trial court’s decision regarding challenges for cause only where the decision is arbitrary or illogical and results in prejudice to the defendant. Smith v. State, 730 N.E.2d 705, 708 (Ind.2000). If a defendant uses a peremptory challenge to strike a problematic juror and does not complain that the use of this peremptory challenge prevented him from challenging another juror who was later seated, the defendant has not shown prejudice and any error will be found to be harmless. Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993). This means that you need to have used all of your challenges and must be able to point to a later juror you were prevented from striking who is problematic. Otherwise, your objection is waived.

“A [criminal court] defendant is entitled as a matter of right only to an impartial jury, Ind. Const. Art. I, § XIII, and not to one of his precise choosing where the issue is merely replacing a regular juror with an alternate.” Jervis v. State, 679 N.E.2d 875, 882 (Ind.1997). Indiana Trial Rule 47(B) allows alternate jurors to replace regular jurors “who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties.” Trial courts have significant leeway in determining whether to replace a juror with an alternate, and we will reverse only if there was an abuse of discretion. Harris v. State, 659 N.E.2d 522, 525 (Ind.1995); Ferry v. State, 453 N.E.2d 207, 213 (Ind.1983).

Constitutional Issues Regarding the Use of Peremptory Challenges

You cannot strike a member of a jury panel who is part of a protected class without being able to state a non-discriminatory reason for the use of your challenge. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994), the Court extended Batson (prohibiting the use of peremptory challenges along racial lines) to gender issues as well, holding that gender, like race, is an unconstitutional proxy for juror competence and impartiality. In so doing, the Court employed traditional equal protection analysis, observing that “the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial.” Id. at 136-37, 114 S.Ct. 1419. The J.E.B. Court rejected the justification offered by the state that jurors would be likely to sympathize along gender lines in a paternity action, declaring that “[w]e shall not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns.” Id. at 138, 114 S.Ct. 1419. Emphasizing the harm that race or gender-based discrimination in jury selection causes “the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process,” the Court reasoned that “[f]ailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” Id. at 140, 145, 114 S. Ct. 1419. This restriction applies to civil cases as well as criminal cases.

Implied Bias Due to Close Relationship to State

Woolston v State, 453 N.E.2d 965, 968 (Ind.1983) involved a juror who had a close relationship to the State Police due to his wife’s employment. The juror was familiar with three of the officers who were to testify for the State and knew that his wife had worked on some of the evidence in the case. The Court noted that a challenge for cause had been held to exist in cases where a juror’s spouse had been hired for future employment by the prosecutor and in another where the juror’s wife was a second cousin to a member of the prosecutor’s staff, the Woolston court found that, based on the juror’s relationship to the State, it was error for the trial court to deny the challenge for cause.

Outside Knowledge, Evidence or Expertise

A jury should not be permitted to introduce outside evidence or knowledge which they may independently possess. This problem arises where a jury such as doctor, nurse or scientist has expertise which will be at issue in the case. Allowing this type of juror to bring expertise to the case, would be equivalent to allowing the juror to act as an expert witness who is never disclosed to either side and who cannot be cross-examined by either party. If the juror cannot leave this expertise, specialized information and such opinions behind in deciding the case, they are being allowed to act as an expert witness in the jury room. While there are no cases directly on this point, there are plenty of analogous authorities supporting such an objection. By analogy, judges are not permitted to act in this fashion. Our courts have held that where a judge based a verdict in a bench trial on an unannounced view of the accident scene he violated Federal Rule of Evidence 605. Lillie v. US, 953 F.2d 1188, 1191, 34 Fed. R. Evid. Ser. 938 (10th Cir. 1992). Likewise, it has been held where Judge relied upon his own personal experience as to the effects of anesthesia in determining the voluntariness of a confession, he violated the prohibition against being a witness under Federal Rule of Evidence 605. US v Lewis, 833F.2d 1380, 1385, 24 Fed. R. Evid. Ser. 432 (9th Cir. 1987). Indiana Rule of Evidence 606 provides that:

Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

This rule of evidence concerning jurors is comparable to the same rule of evidence which prohibits judges from acting as a witness. I.R.E 605. Additional rules to consider are the following excerpts from Indiana’s Jury Selection Rules:


RULE 5    DISQUALIFICATION

The court shall determine if the prospective jurors are qualified to serve, or, if disabled but otherwise qualified, could serve with reasonable accommodation.  In order to serve as a juror, a person shall state under oath or affirmation that he or she is:

(a) a citizen of the United States;
(b) at least eighteen (18) years of age;
(c) a resident of the summoning county;
(d) able to read, speak, and understand, the English language;
(e) not suffering from a physical or mental disability that prevents him or her from rendering satisfactory jury service;
(f) not under a guardianship appointment because of mental incapacity;
(g) not a person who has had rights to vote revoked by reason of a felony conviction and whose rights to vote have not been restored; and
(h) not a law enforcement officer, if the trial is for a criminal case.

Persons who are not eligible for jury service shall not serve.  Upon timely advance request from the prospective juror, the court may excuse from reporting for jury service any person whose bona fide religious conviction and affiliation with a religion prevents the prospective juror from performing jury service.

RULE 6  EXEMPTION

A person who has completed a term of jury service in the twenty-four (24) months preceding the date of the person’s summons may claim exemption from jury service.

RULE 17   CHALLENGE FOR CAUSE

(a) In both civil and criminal cases the parties shall make all challenges for cause before the jury is sworn to try the case, or upon a showing of good cause for the delay, before the jury retires to deliberate.   The court shall sustain a challenge for cause if the prospective juror:
(1)  is disqualified under rule 5;
(2)  served as a juror in that same county within the previous three hundred sixty-five  (365) days in a case that resulted in a verdict;
(3)  will be unable to comprehend the evidence and the instructions of the court due to any reason including defective sight or hearing, or inadequate English language communication skills;
(4)  has formed or expressed an opinion about the outcome of the case, and is unable to set that opinion aside and render an impartial verdict based upon the law and the evidence;
(5) was a member of a jury that previously considered the same dispute involving one or more of the same parties;
(6) is related within the fifth degree to the parties, their attorneys, or any witness subpoenaed in the case;
(7)  has a personal interest in the result of the trial;
(8) is biased or prejudiced for or against a party to the case; or
(9) is a person who has been subpoenaed in good faith as a witness in the case.
(b) In criminal cases the court shall sustain a challenge for cause if the prospective juror:
(1)  was a member of the grand jury that issued the indictment;
(2)  is a defendant in a pending criminal case;
(3) in a case in which the death penalty is sought, is not qualified to serve in a death penalty case under law; or
(4) has formed or expressed an opinion about the outcome of the case which appears to be founded upon
a.  a conversation with a witness to the transaction;
b.      reading or hearing witness testimony or a report of witness testimony.

(c) In civil cases the court shall sustain a challenge for cause if the prospective juror is interested in another suit, begun or contemplated, involving the same or a similar matter.

RULE 18   NUMBER OF PEREMPTORY CHALLENGES

(a) In criminal cases the defendant and prosecution each may challenge peremptorily:
(1)   twenty (20) jurors in prosecutions where the death penalty or life without parole is sought;
(2)   ten (10) jurors when neither the death penalty nor life without parole is sought in prosecutions for murder, and Class A, B, or C felonies, including enhancements; and
(3)   five (5) jurors in prosecutions for all other crimes.
When several defendants are tried together, they must join their challenges.

(b) In civil cases each side may challenge peremptorily three (3) jurors.

(c) In selection of alternate jurors in both civil and criminal cases:
(1)   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;
(2)   the additional peremptory challenges under this subsection may be used only in selecting alternate jurors; and
(3)   peremptory challenges authorized for selection of jurors may not be used in selecting alternate jurors.

(d) If it appears to the court that a particular peremptory challenge may have been used in a constitutionally impermissible manner, the court upon its own initiative may (a) inform the parties of the reasons for its concern, (b) require the party exercising the challenge to explain its reasons for the challenge, and (c) deny the challenge if the proffered basis is constitutionally impermissible.

Be prepared and ready, so that you can keep that one bad apple off your next jury. Good luck!

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