Winning the jury selection game. How to identify jurors that hold a bias against you and how to secure a winning verdict in a criminal jury trial.
Hi, I’m Jeff Hampton with Hampton Criminal Defense Attorneys. We have a team of criminal defense attorneys that provide criminal defense services to people in Fort Worth, Texas and surrounding cities in North Texas. Today, I want to talk about jury selection and specifically biases and prejudices of potential jurors. When you walk into a criminal courtroom and you begin jury selection, you know, on our jury selection series, we’ve been talking about the importance of jury selection in a criminal trial. And in many ways, I know I’ve mentioned this already, but jury selection is one of the most important parts of the entire jury trial. In fact, on TV, they show a lot of the criminal trial process that is exciting. They glorify cross-examination, they glorify closing argument. But in reality, jury selection is one of the most important parts of a trial because this is the place where you get to actually talk to the people that are going to judge you. You get to find out what they believe, how they see life, the lens by which they’re going to view your evidence. And if you’re very careful about it and artful about it, you can find out what their prejudices are, their biases, and you can use that to get them off the jury so that they do not judge you in an unfair way.
So, remember, you need to know who your friends and enemies are. You need to know how people see you before you get into the jury trial, into the actual jury trial where evidence is presented. So, the goal in jury selection is always the same. The goal is to strike those jurors for cause. It’s a term known as strike for cause, strike those jurors that are unable to follow the law and are absolutely going to be able to be struck because they’re going to treat you unfairly.
For instance, maybe they’re going to hold your decision not to testify against you. Well, that’s against the law. They need to get out of there. Let’s say they’re going to not presume you innocent. That’s against the law. They need to be struck for cause. But then you have a certain amount of peremptory strikes that you can use to get people that you just don’t feel are going to be fair to you. Maybe not based on following the law, you just don’t get a good vibe about them. They’re not really looking at you. You know, a lot of times I’ll see jurors that are sitting like this, that hold their arms like this, they’re staring at the accused and they’re just sitting there. They’ve already made up their mind. This guy’s done something wrong. I can’t wait to throw the book at him. That person needs to be dumped off the jury, and that is known as a peremptory challenge, where you can get them off the jury.
So, this is the goal. The goal is to get some fair people on this jury and get the crazy people off the jury. So what about jurors that have prejudices and biases? Though I just mean, I don’t mean just someone who’s racist or sexist. I’m not talking about someone who is using some sort of super negative connotation here when I use this term prejudice or bias. All of us have preconceived ideas about how we see the world. All of us are the sum of our life experiences and the difficulties that we’ve been through. And as a result of that, we have a tendency to formulate the lens by how we see things based on our background and experience. Well, it’s really important that that is determined by your attorney before you get into the middle of a criminal jury trial. Because otherwise, that background can be used in a negative way against you.”
You know, I’ve actually seen jurors that, you know, when I was a prosecutor, I remember seeing where there were jurors who would tell us that they made a decision to convict someone based upon information that honestly had nothing to do with the case, but based on something they think they remembered because of some experience they went through. It’s critical that your defense attorney is able to get to the bottom of that information to get that person off the juror off the jury.
So, how do we find out about these prejudices and biases? How do we determine those people who have these viewpoints? More importantly, how do we get the jurors to open up about these prejudices and biases without feeling ashamed? You’ve got to help people feel comfortable about these things because if you try to make them feel guilty about it, they’re not going to open up at all. I mean, if they don’t open up, you can’t strike them for cause. If they don’t open up, you’re not going to know whether or not they’re a good juror, a reasonable juror, a fair juror for this particular type of criminal case.
So, look, I tell people all the time, we want you to share with us your thoughts and your feelings. Having a certain viewpoint is not a negative thing. There are many people in here, like on a felony trial, there may be 60 jurors that are in their potential jurors on jury selection. You might have 20 people for a misdemeanor trial. We tell people, look, there’s going to be people in here, in a group of 60 people, that are going to see things completely different. We want to know how you feel. Every feeling you have is valid, every thought you have is valid. And so, you may be a perfect juror for this type of case, or you might not be the best type of juror for this type of case based upon how you see things and based on what the law says, so you must try to help them feel comfortable about how they see things.
So, one of the things that we do here is, it’s really important that if I can get them to start speaking about areas, they have a problem with, many times I can find out they’re just not willing to follow the law. There are a lot of people who are not willing to give someone the presumption of innocence when they find out they have a Fifth Amendment right not to testify. I’ll get a lot of people who’ll say, ‘Well, if I was innocent, I didn’t do anything wrong, I’d take the stand, I’d tell my story.’ And even after I go through this in-depth, and I encourage you to go back and look at one of the videos that I did recently, I talked about this whole concept of a Fifth Amendment right, you do not have to testify. And even in a trial, some jurors just can’t get past this. But you must get them to articulate this.
In fact, here’s what you do. Once you get to a place where you get them to articulate that they’re going to hold something against you that they’re not allowed to under the law, you have to have them state it very clearly. And then, depending upon the judge and the jurisdiction, you can either strike them publicly for cause, which I prefer not to do because I don’t want to alienate them with the rest of the jury pool, or we can approach the judge and ask the judge to strike them for cause, to excuse them because they’re unwilling to follow the law.
But it’s important, if they don’t open up about their feelings about it, you’re not going to be able to strike them for cause.
So, let’s just jump into this, let’s jump into the role play of techniques my Criminal defense firm has used to get many jurors to admit their biases and prejudices and hopefully help strike them from the jury. So, when we talk about this, the best way to get jurors to open up about their prejudices and biases is to admit your own prejudices and biases, admit your own things that you have a hard time with.
One of the things that I’ll do is I’ll start off in a jury selection. I’ll say, ‘Ladies and gentlemen, listen, it’s very important that our client here receives a fair trial. It’s very important that everyone who is sitting in this position where the state, the government, has claimed they’ve done something wrong, they’re to be presumed innocent. But the reality of it is, when we start talking about this, I know for a fact there would be certain types of juries that I would not be a good juror for. And even as a defense attorney, there have been times I have been allowed to be on a jury. I’ve been in a jury pool room just like this, where I’m sitting here listening to another attorney speak. And, you know, in fact, I was at one time where there was a civil jury, and they were there arguing about something. And, you know, I had something that happened when I had a bad encounter with an insurance company. An insurance company was, I mean, it made really left a bad taste in my mouth. Well, guess what kind of civil jury I was on? It was with an insurance company and someone who was injured. And so, the argument began, and people started kind of sharing their sides. And I had to be honest, I had to be upfront with people and say, ‘Listen, I have to be frank with you, the only experiences I’ve ever had with an insurance company were really bad.’ And so, you know, I want to be super upfront About this and transparent that there are certain cases I would just be upfront that I would not be qualified to be a jury on. And I think I probably need to tell you that I don’t think this case would be very good for me to be a part of.
Now, I share this as a story with the jury. I let them know I want them to understand, I too have certain biases that I am not going to be able to feel comfortable being on a particular type of jury. Doesn’t make me a bad person, it just means that I’m not a good fit for this particular type of case and this type of trial.
This is a wonderful technique to get jurors to open up. It helps them not feel ashamed. I’m being vulnerable, I’m sharing with them. I’m not a good fit for certain cases. And so, one of the things that we do is I want people to understand right away, at the very beginning of these types of things, that there are certain cases that they may not be qualified for and there may be certain things that they have feelings about that might disqualify them from being a juror in this case.
And so, you know, in that situation, I believe that that person, that insurance company, deserves for me to be upfront about that and disqualify myself from consideration so that I don’t unfairly judge them in a trial if I were to move forward. Does it make me a lesser person? But they need to know. And I introduce that concept. I can almost see people on the jury pool just start to relax a little bit, and they start saying, ‘Okay, you know, fair enough. I can talk to this guy and let him know that maybe I’m not a good fit, and I don’t have to feel ashamed about it.’
So, you know, I tell them, I segue into that by saying, ‘I don’t believe that every person is qualified to sit on a case as a juror, but only you know that. And in fact, one of the things we tell them is it takes courage to say, ‘I’m not qualified.’ It takes more courage to say, ‘I’m not qualified’ than to try to make people believe that you are. None of us like to admit there is something that doesn’t quite sit right with us. I mean, after all, for the time that we’re a kid, we’re taught that if we can do anything we want if we put our mind to it, right? That’s what we’re taught to do. But when it comes to something as important as someone’s freedom, when it comes to something as important as someone’s presumption of innocence, there’s more to it than that.
And I share this example because this is a true example as well. I personally have been robbed before, and I share this story. There’s been someone who came up to me and stole something from me and did it in a very aggressive manner. And I explained how I felt and what I experienced when the guy did this to me, and how it was fairly traumatic. But the guy never got caught. So as a result of that, I probably would not be the best juror on a robbery case because my feelings and my emotions and my experience would likely color how I see everything that’s going on.
Or maybe I had a family member that went through this. Maybe I personally have a viewpoint or a perspective on something based on something that I know or see that will color my ability to be fair to this individual. So understand, you create a safe environment for people to share their prejudices and their biases, and they come out with this. And so, I, and here’s the key, you’ve got to get people to admit, ‘Sir, is it possible that based on that experience, that you may subconsciously hold that against Mr. Miss Jones in this situation because of the experience that you went through. And when you get people to not feel ashamed or afraid of being vulnerable, after you’ve been vulnerable, you can get an enormous amount of people who will say, ‘You know what, it is possible. It’s possible that I could subconsciously hold that against them and not be fair to them and not be willing to give them a fair because here’s the reality of it. There’s a presumption of innocence. We must believe that the individual sitting here today, the accused, is innocent unless the state, unless the government proves beyond a reasonable doubt otherwise. So, they start at ground zero. They have to go all the way up to proof beyond a reasonable doubt. And if someone will say, ‘I don’t know if I can put them at that place. I think I hold them up here and make them prove something, and I’m not giving them that full benefit of the doubt,’ that can be a basis to strike that juror for cause.
So, it’s really important to do that. There’s something, and I always tell them this, I said, ‘There’s something admirable about a person that can examine themselves and admit that there’s something about their background or experience that would prevent them from sitting on a criminal case.’ And I would like each of you to think about that for a little while. It’s kind of some of the questions that I say, think about this for a minute. Is there something in your past or your experience… and we’ll get into this more in depth, but I ask them, I say, ‘Listen, imagine for a moment, this is the type of case. Let’s say we’re talking about a murder case or let’s say we’re talking about some type of violent crime case. When you get back into that jury room and the door is closed and the fate Of this woman here, Miss Jones, rests in your hands. And you all of a sudden realize that there might have been something that you should have disclosed because they could make a difference, and maybe you can’t be fair to Miss Jones back there. It’ll be too late, but not only will it be too late for you to be able to share that, it’ll be too late for Miss Jones to know about that. So, what we try to do is to find a juror. At this point, here’s what happens when you set it up this way. Overwhelmingly, there will be at least one juror that will share, ‘Yes, I will tell you right now I had a similar experience to you that you’re talking about. I’ve gone through this, and I’ll tell you right now, I had a family member who was seriously injured. I myself have been robbed, or I myself have been a victim of something like this.’ And they will share that something in their background or a perspective for which they see things may make them the wrong candidate to sit on this particular jury.
When they do that, it’s really important that your criminal defense attorney do this. A lot of criminal defense attorneys make an enormous mistake by saying, ‘Thank you, sir. Thank you for sharing that,’ and then they move on. But instead, what has to happen is you have to use that as an example and say, ‘Mr. juror, thank you so much for sharing that with us. Thank you for discussing this issue. This gives other jurors the opportunity to be able to share similar information like this.’ And then what we do is we literally go over there and say, ‘Sir, you know, now Miss Hernandez, how do you feel about what Mr. Thomas said here? Can you relate to how he feels? This doesn’t mean Mr. Thomas is a bad person. No, absolutely it doesn’t mean he’s a bad person. It just means what he’s got something in his background, his experience, and he wants to be as fair as possible to make sure that Miss Jones here, the accused, is being fairly treated in this trial. What ends up happening is this: you end up having people open up all over the place. You end up having people all over the jury admitting, ‘Yes, I’ve had an issue with this. I’ll be honest with you, I have a hard time. You know, the moment I walked in, and I’ve had people say this in a trial, the moment that person walked in, I just immediately looked at him and said, ‘They must have done something wrong.’ And, you know, to be quite frank, I know I’m supposed to give them that benefit, but I have a real hard time with that. And I kind of just have this belief that if someone has been arrested, they have to have done something wrong.’
These types of issues are important, even if you’re not able to strike them for cause for failing to follow the law. Every single time that someone gives this to you, it’s a gift. In fact, I say that during jury selection. I remind people, I say, ‘Listen, every time we share our concerns and our feelings about issues, they are gifts to each other. And they are an absolute gift to the judge. They are a gift to the defense. They are a gift to the prosecutor. And more importantly, they’re a gift to Miss Jones.’ Because think about this: as you go through all this, there may be feelings that you have that you don’t want to share. But even if they’re negative, whether they’re positive or they’re negative, no matter how anyone perceives this, they are still gifts. And Miss Jones is entitled to know how you feel. Imagine a citizen innocent, sitting in the place of Miss Jones. Every time you share your feelings, your emotions, and how you see the world, it’s a gift to her to make sure she is going to receive a fair trial and to make sure that all of this is handled properly as provided for in the United States Constitution.
I want you to understand, a lot of attorney’s rush through this process, and they don’t really get to the bottom of how people see things. This takes time, it takes patience, it takes nuance. It’s really important that the criminal defense attorney take the time to develop these questions, and you need to be listening just as easily as much or more than talking.
I’ve seen so many bad criminal defense attorneys and prosecutors, quite frankly, get up there and just rush through. They just share a bunch of stuff, trying to educate the jury and not listening to one thing that these jurors are saying. The gold that comes out of these jurors’ mouths can be the determination and the difference between a guilty verdict or a not guilty verdict. Because so many people walk into courtrooms with preconceived notions of how something should work out, and you’re never going to know how they see it unless you listen to what they have to say.
So, this is just an example of some of the things that you look into. I’m sharing this with you to understand, number one, maybe you’re an attorney and you’re listening to this, and you say, ‘These are some things I need to make sure and implement in my own criminal practice.’ But then maybe you’re someone here who’s been accused of a crime, and you’ve done nothing wrong. It’s important that your attorney has some tactics and they’re ready in terms of making sure if you’re going into the courtroom and you’re going into trial, that you are truly going to be treated fairly as the United States Constitution requires.
So, I hope This has been helpful for you. My name is Jeff Hampton with the Hampton Criminal Defense Attorneys. And listen, actually, I want to give you a free ebook, ‘What to Do If You’ve Been Charged with a Crime in Texas.’ If you’d like to be able to get access to that free ebook, all you’re going to do is click down into the video description.
But otherwise, listen, most importantly, I want to share this information with you. We’re focusing on jury selection, the importance of using criminal defense tactics and techniques in order to help you win your criminal trial. Thanks for joining us here today. If you liked what you heard, subscribe to our YouTube channel, like this, and hey, post some comments. I encourage you to engage with me on this, ask some questions as they come up. I’ll be happy to try to answer some of those questions as we go along.
I appreciate you joining us. We’ll see you next time.