JURY SELECTION HANDBOOK: THE NUTS AND BOLTS OF EFFECTIVE JURY SELECTION

Of all the portions of the trial, the part that I hated the most was jury selection. I had a keen sense of both how important it was and how inadequate I was to do a good job of it. I had not been practicing law very long before I decided that in most cases the trial is over when the judge says “Swear the jury.” If at that point you have the wrong jury, there is not much you can do—you’re not going to win. If, on the other hand, you have the right jury, there are many things you can do from that point forward to snatch defeat from the jaws of victory.

Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like "Jury Selection Handbook" back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.

"Jury Selection Handbook" is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.

One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.

The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:

Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.

***

A: No, I can’t be fair in this case. [A rape case].

Q: And why is that? A: Because the defendant raped my daughter.

I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:

Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?

I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”

One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.

For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?

Other than the foregoing quibbles, I found "Jury Selection Handbook" to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I’d put this book on my required reading list.

A REVIEW OF "THE LINDBERGH KIDNAPPING CASE: A CRITICAL ANALYSIS OF THE TRIAL OF BRUNO RICHARD HAUPTMANN"

My friend Ron Clark, with whom I co-authored Cross-Examination Handbook: Persuasion, Strategies, and Techniques, maintains a blog on cross-examination. He recently posted a nice review of my book The Lindbergh Kidnapping Case to his blog. You can access the post with the following hyperlink or simply read the text which I have reproduced below.

NEW LINDBERGH KIDNAPPING CASE BOOK AND CROSS-EXAMINATION

 

Talbot Publishing recently released my co-author Bob Dekle’s book entitled The Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann.  Although the Lindbergh kidnapping case has been written about innumerable times, never before has the trial of Bruno Richard Hauptmann been meticulously researched and analyzed. Bob and his co-author Jim Dedman have done just that.           

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage:The Five Reasons O. J. Simpson Got Away With Murder. In Outrage, Bugliosi, who had prosecuted Charles Manson, explains how he would have prosecuted Simpson, along with providing examples of what he would have done, such as what he would have said in closing argument.

The Lindbergh Kidnapping Case is instructive on how to conduct a cross-examination. For instance, one of the prosecution witnesses at the Hauptman trial was John Condon, an interloper who was involved in the negotiations over the ransom. This is how the book assesses defense counsel’s strategy in cross-examining Condon:

Reilly adopted the wrong strategy for the examination of Condon. Instead of attacking the implausibility of Condon’s testimony, he attacked Condon personally. What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony. . .

Rather than merely criticizing the strategy, the book recommends effective techniques that could be utilized as follows:

Reilly should have attacked the plausibility of the testimony, not the personality of the testifier. Snide remarks and personal assaults proved counterproductive and resulted in this portion of the cross-examination being diverted down a rabbit trail of arguing over the meaning of words. He would have done better by asking a line of tight and controlling single-fact questions. Such a line of questioning might have gone thus:

Q: You attended a lineup at the Greenwich Street police station in New York? 
A: Yes.

Reilly should expect Condon to append a verbal barrage to his affirmation, but he should not take the bait. Rather he must relentlessly pursue the non-identification.

Q: The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery? 
A: Yes.

Q: Bruno Richard Hauptmann was in the lineup? 
A: Yes.

Q: At that time you did not identify Mr. Hauptmann as John?  
A: I identified Mr. Hauptmann at that time but I made no declaration of identification.

The Lindbergh Kidnapping Case is the perfect read for anyone interested in the Lindbergh case, an insightful telling of the story of the Hauptman trial, and a superb tutorial on trial strategies and techniques with illustrations from this famous case.