What we commonly call jury selection is more aptly called jury deselection. The point is not to seat a panel of neutral, unbiased jurors to hear the facts of your case. The point is to eliminate the jurors who are bad for your case and to try the case to the jurors most sympathetic to your client’s story.
To accomplish this goal you must eliminate as many jurors as possible before using your peremptory strikes. You must develop a case to have the “bad” jurors struck for cause. The most efficient way to do this is through the use of scaled questions.
The scaled questions I use for striking jurors deal with (1) the presumption of innocence, (2) credibility of police officers and (3) a defendant’s right to remain silent. I also question the panelists on reasonable doubt with a question that requires one of two answers. I use a scale of 0 to 10 on my scaled questions but I know other attorneys who use 0 to 9, 1 to 5 or 1 to 7. As you will see, the scale you use is not that important. In the examples below I will use the term the defendant. Never use that term in front of the jury, always use your client’s name.
The first scaled question I ask is:
How do you rate your feelings about whether the defendant, as he sits up here today, is guilty?
I give the panel a range of 0 to 10 with 0 meaning “I have no opinion, ” 5 meaning “I think he’s probably guilty,” and 10 meaning “Don’t bother with the trial.” I’m looking for any panelist who gives an answer of anything other than zero. Any answer above zero indicates the panelist does not believe that my client is innocent unless proven guilty.
The second scaled question I ask is:
Rate the weight you’d give the testimony of a peace officer, not based on his training or experience, but solely because of the badge.
For this question, 0 means “I wouldn’t give it any weight,” 5 meaning “I’d probably given it more weight than a non-peace officer,” and 10 means “If a man with a badge says he did it, then he did it.” For this question, any answer other than zero indicates the panelist would give the testimony of a police officer more credibility than that of a civilian witness because the officer wears a uniform and a badge.
The third scaled question I ask is:
This court will instruct you that the state has the entire burden of proof in this case. How would you feel if the defendant didn’t testify?
For this question, 0 means “I wouldn’t give it any consideration,” 5 means “It would have some negative impact that I couldn’t set aside,” and 10 means “If he doesn’t testify, he’s guilty and I can’t set that aside.” If a panelist gives any answer other than zero, that panelist is saying you will have to prove your client’s innocence.
The fourth question is:
If you felt that the defendant was probably guilty, but you had a doubt based on reason, what would your verdict be?
There are only two possible answers to this question – guilty or not guilty. If a panelist says “guilty” then that person is admitting that he or she cannot follow the law and hold the state to its burden of proof.
Make certain that you or, preferably, your co-counsel or assistant marked each juror’s answers to these questions. I prepare a juror chart before each trial and have a special line for the answers to the scaled questions. Since I know in what order I asked the questions, I know which answers correspond to which question.
Now all that’s left is to make your strikes for cause. You need to know which jurors you are seeking to strike, on what grounds and why. For example, if Juror Number 4 gave an answer of three to the first scaled question, ask the judge to strike that juror because he does not believe your client is innocent unless proven guilty based on his answer to the question.
If the judge denies your motion to strike for cause, ask the judge for an additional peremptory strike. If the judge denies that request, before the jury is sworn in, object to the panel and tell the judge that because your request to strike for cause was denied, and because your request for an additional peremptory was denied, you were forced to use a peremptory that you would have used to strike another juror on the panel.
The use of scaled questions allows you to get a lot of information from each panelist in a short period of time. It may also provide grounds to strike jurors for cause which will allow you to use your peremptories to eliminate those panelists whom you believe will not be sympathetic to your client’s story.