Jury selection is an important factor in winning your trial. A jury can decide against you despite all of the facts being in your favor. The reality is, you better ask the tough questions in order to find out if a potential juror will be accepting and hopefully sympathetic to your position. Alan Ripka, Esquire, wants to highlight the word “accepting” because if you think that a juror will be fair for your trial, you should pack up your prosecution bag and take up something else.
Most people want to believe, ideally, that they can be fair – that they cannot possibly be one of those “unfair, biased people,” and therein lies your greatest problem. How does one get to the core of the problem when the apple does not believe it needs to be bitten into? It is like convincing the ocean that it is not really blue in color, but that the color is only a reflection. You are a lawyer practicing psychology while playing devil’s advocate.
If you go into the voir dire process with the realistic belief that every single person in the room is unfair, prejudiced, biased, sexist, and does not care whatsoever about your case, you might have a chance of picking a jury that "may be accepting" of your position.
A trial lawyer during jury selection MUST find a way to create a relationship with the potentia juror so that a bond or trust is born in the selection’s infancy. A genuine relationship must be established between the trial lawyer and the potential juror in order to provoke a candid conversation between them. The object is to weed out those that you can NEVER have a chance with and keep those who "may be accepting" because that is the best you are going to get! That’s right – face the facts and don’t drink the "duty bound to be a fair juror " Kool-Aid if you want a chance to win.
If nothing else, be direct. Confront people’s preconceived notions and prior experiences right away. Do not subscribe to the notion that if you don’t ask, the answer cannot hurt you. People’s hidden thoughts, the unspoken ones, are the ones that will thrash you in the form of an adverse verdict. I realize that it is difficult to talk about issues that hurt your position, but if you embrace the issue as a fair issue, you will gain credibility. Then, when you explain and discuss why their position is not applicable in your case, or ask how they would feel if a juror decided the case before the trial if they were the litigants, the tide begins to turn.
A trial lawyer can feel when rational arguments are making sense to potential jurors and capitalizes on this. This is done by appealing to the jurors’ conscience and discussing what they would expect from a juror if they were a plaintiff or a defendant. It is extremely helpful to point out decisions from past juries that everyone believes were unjust. These decisions that were made contrary to the evidence is the very wrong that they will remember and hope to avoid.
In the end, establishing a relationship with the jurors, working with their preconceived notions and prejudices, and appealing to jurors’ conscience will not guarantee jurors who will render a verdict in your favor. However, it will increase the probability that the jurors find consistently with what the evidence shows, says Alan Ripka, Esquire.