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| George (Bob) Dekle |
Bob Dekle recently
reviewed Jury Selection Handbook as
follows: 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.
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