Selecting a jury is one of my favorite parts of a trial as well as one of the most important. It is the first chance you have to get them on your side, which isn’t always easy if your client is charged with a violent crime like battery or domestic violence. I usually launch with a series of questions to wake them out of the deep sleep the prosecutor put them in, while at the same time, hooking them into my discussion of issues in the law. It is more or less the Socratic Method, if only a bit more deliberate in execution.
If I know the prosecutor does not have the weight of physical evidence (which is most of the time), I always start with the concept of the “accusation.” How many of you have been accused of something you did not do? Everyone can relate to that. I then move on to the issue of “What is an accusation worth, in the legal sense?” I usually equate it to something less than nothing and so surely less than probable cause. “If I don’t like someone and I accuse them of a horrible crime, should they be arrested?” “Of course not!” “Should they or could they be convicted of crime?” “No way, not in America!”
Seeking the everyman, populist viewpoint makes it easy to shed any pre-disposed thoughts about being a criminal defense lawyer–and makes you the hero for making their legal duty of being a juror far more interesting and engaging.
I then like to discuss topics relating to evidence. “What is evidence and what are the different types of evidence?” This allows me to start to indoctrination of prospective jurors on how much weight to assign to direct evidence vs. circumstantial evidence. The key here is to let them do the talking, lest you get an objection from the prosecutor and a chiding from the Judge. You are not there to instruct the jurors on the law, only to evaluate the discussion of the jurors in order to select your jury.
The big one: Testimonial evidence vs. Physical evidence. That is because with the victim-based crimes, and especially misdemeanor battery, the prosecutors almost entirely rely on testimonial evidence and they will tell the jurors that testimonial evidence goes to the weight of the evidence, to which the proper reply is: “an accusation can never be anything more than an accusation so long as there is insufficient proof that an actual crime was committed.”
Finally, the last major component is to stress that anything less than proof beyond a reasonable doubt requires a verdict of not guilty according to the law. There is no compromise for any juror on that issue and they should all commit to that standard during jury selection. I also like to discuss the concept of the burden of proof what they are supposed to do with a lack of evidence or a conflict in the evidence. This will prime them for listening to your cross examinations during the trial and will also ensure that they will keep the prosecutor accountable if all they hear from the government is a parade of testimonial witnesses. In those cases, your closing argument practically writes itself.