Jury Selection in DUI Cases: Why Keeping It Simple Isn’t Such a Bad Thing
I have sat through countless attorneys selecting juries in criminal cases, and I have been through more jury selection seminars than I care to recount. However, the one idea that continues to ring more true for me than any other, and the one principle that calms me when I am most worried prior to jury selection was stated by Moe Levine:
If you have selected your jury, not in order to win the case but to develop in them a tolerance toward you and your cause, I beg of you to believe that’s all you can do in selection of a jury. You can’t win it at that point. You can lose it. You can’t win it.
Moe Levine, Moe Levine on Advocacy
I don’t know who Moe Levine is – other than that he looks awesome on the front of the Trial Guides audiobook I have, and his voice is pretty great too. However, I do know that this simple statement is one that many of us who regularly pick juries should be mindful of because it has so much truth in it.
I find myself “pressing” in those cases that are the most difficult for me. When I don’t have an expert to rebut the State’s blood or breath test, I put a lot more pressure on myself. When my client’s video looks damning and I don’t have a great explanation for my client’s performance, I put a lot more pressure on myself. What I call “pressing” or putting pressure on myself is manifested in every phase of the case, and it is very hurtful to my client’s defense. But it is never more hurtful than the manner in which this “pressure” manifests in jury selection.
In jury selection in very difficult DUI cases, I often find myself trying to marry potential jurors to my theory of the case. I know that Georgia procedural rules are not supposed to allow me to ask jurors to pre-judge the case, but I can often get the question answered one way or another, and I see other lawyers trying to do this over and over again. As appealing as that sounds – to have jurors vocalize their approval of your theory before a bit of evidence has been heard, I think it really is one of the more hurtful things we can do in jury selection in DUI cases. Trials are dynamic. Trials are rich with twists and turns, and verdicts which seem simple enough, given that that they consist of 1 or 2 words, are complicated. The suggestion that we tricked a juror into committing to a theory before they heard any facts can be used to penalize us, and I think that jurors often do penalize us for these acts.
So, I have resigned myself to “develop[ing] in them a tolerance toward” me and my cause, as Levine suggested. I introduce central elements of my case to them and deal with them candidly simply to see if potential jurors are accepting of those principles. It’s a much more humble and patient approach to jury selection, and it consistently keeps me from losing trials at a point in which they cannot be won.
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