Identifying Leaders in Jury Selection

Criminal defense attorneys often state that a trial is either won or lost in jury selection. In Florida, and if the case does not include a capital offense, both the prosecutor and defense lawyer question an average of 22 potential jurors with the goal of obtaining the final six (and one alternate) who will sit in judgment of the defendant. These final jurors, once sworn in by the presiding judge are considered the finders of fact and must unanimously agree after hearing and considering all of the evidence presented in the criminal trial.

The legal purpose of the selection process is to ensure that these triers of fact can be fair and impartial. They misstate on the record that they will set aside any personal biases or beliefs that they may have in weighing the evidence and considering either the guilt or non-guilt of the individual accused. While this may be true, defense lawyers and prosecutors alike unanimously agree that there is far more to the process than simply weeding out individuals who would not afford a fair trial to the defendant. Identifying and preserving the right of favorable individuals to sit on the sworn panel is certainly the goal of any experienced litigator. This of course, should be of no surprise considering that every move that defense lawyer makes in trial should be in furtherance of exonerating their client. They want jurors to vote their way. They need those six not guilty votes at the conclusion of the case.

Criminal law does not recognize or consider argument that a potential juror should sit because either the prosecution or defense, respectively, has established that the individual has shown a likelihood of voting in their favor obviously. In fact, should that knowledge become so evident following a line of questioning, the individual would most certainly be struck by the opposing party. The fact is that most of the jury selection process involves strategy and motivations that are unspoken of as a matter of law but completely accepted as a matter of practice.

While any potential juror can be stricken for cause without restriction on the number of strikes, each litigating party has only three preemptory strikes in which to exercise when “cause” is not shown. This makes for quite a complicated and almost mind-bending strategical approach among the lawyers involved. Preventing favorable jurors from being stricken, educating each and every member of the presumptive panel on key issues in addition to building a rapport with the potential finders of fact can become much more complicated than one might think. Throw in about two dozen more issues that are paramount in jury selection for both prosecutor and defense attorney and you have an almost incomprehensible game of three-dimensional chess going on between the players.

Recently attorneys William R. Moore and former 30 year Broward County Public Defender Drew Atria discussed one of these paramount issues as it related to identifying potential jurors who have leadership qualities. “I am always looking for the foreperson who will be sitting in judgment of my client” claims Attorney Moore. Convincing a single juror with strong leadership qualities that the State has not proven their case will ensure victory for the client…

…unless you somehow were unable to prevent a second juror with strong leadership qualities from sitting who was likely to vote in favor of the prosecution.

I want one leader in the group claims Moore and I want that single soldier to vote my way along with convincing the other jurors to do the same. Two “Type A” personalities in the deliberation room assuming the roles of prosecution and defense while we all wait either hours or even days for verdict is never a pleasant manner in which to pass the time.

Questions about this article or the above video broadcast should be directed to Attorney William R. Moore at 110 SE 6th St #1713, Fort Lauderdale, FL 33301, or by calling (954) 523-5333, or emailing to wrdefense@gmail.com