The Jury Selection Process in Michigan Courts

8/8/2011 An individual charged with a criminal offense has the right to a jury trial under the United States and Michigan Constitutions.  This is one of our most important rights as citizens, because the reason and common sense of members of the community - the power of the people (and not the "People" the Prosecution claims to represent) - can overcome misguided, statistic driven Prosecutions and cynical Judges.  Jury selection is a critical step because  without a fair jury there cannot be a fair result.   Just prior to the jury selection process, the potential jurors are brought into the Courtroom, and jurors and sometimes alternate jurors are seated in the jury box.  The Judge has the jurors take an oath to swear or affirm that they will truthfully answer questions about their qualifications to serve as jurors in the case before the Court.  Jurors are generally referred to by either a panel number specially assigned to each potential juror or a seat number, instead of by name, because Courts are sensitive to the privacy of jurors.  This is also the reason why camera phones are not allowed in many Courthouses by members of the general public.   During the jury selection process the potential jurors are questioned by the Court.  Most, but not all, Courts also allow the Prosecutor and Defense counsel to ask questions of the individual.  The Courts that do not allow questions by the Prosecutor and Defense will allow written questions to be submitted and asked by the Court from both sides (if the question is deemed appropriate by the Judge).   When jurors are asked questions by the lawyers (a process also referred to as voir dire), it provides an opportunity for the lawyers to develop a rapport with jurors which may be unavailable at other portions of the trial.  The jury selection process is typically the only opportunity the lawyers have to have a conversation with persons that end up serving as jurors on the case. Outside of the jury selection process, jurors are instructed to not have any interaction with any of the parties or lawyers.  How well jurors like the Defense counsel can sometimes rub off on the Defendant, and influence the jury's decision.   After jurors provide answers to the questions that were submitted, the Judge alternates between the Prosecution and Defense to ask if either side has a challenge for cause or a peremptory challenge to exercise in order to remove potential jurors from serving on the jury.   The Defendant and the Prosecution are entitled to an unlimited number of challenges for cause.  If the Judge decides that the challenge for cause is with merit, the potential juror is removed from further consideration to serve on the jury, and neither side is charged with a peremptory challenge.   There are a number of different reasons, according to the Michigan Court Rules, as to why a Judge should grant a challenge for cause.  It is grounds for a challenge for cause that the prospective juror: (1) is not qualified to be a juror.  A juror can be "not qualified" due to age, lack of citizenship, mental illness, etc. (2) has been convicted of a felony.  I do not agree with this prohibition because convicted felons may have better insight into a case than other members of the community and this insight could be offered to other members of the jury.  There are felonies that have nothing to do with honesty, such as drunk driving 3rd offense or Felonious Assault, that definitely should not disqualify the individual.  If the rationale is bias, then perhaps police officers and prosecutors should also be disqualified from serving as well. Although I have this opinion, Prosecutors routinely use this as a basis to exclude potential jurors from serving on trials. (3) is biased for or against a party or attorney (4) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be.  An example is someone who believes drug use should be legal, and refuses to find someone guilty based upon that belief. Sometimes there are cases in the media, such as OJ Simpson murder trial, where members of the public have a strong opinion about the case before the trial even commences. (5) has opinions or conscientious scruples that would improperly influence the person's verdict.  For example, some persons have religious or ethical beliefs that prevent them from judging others; (6) has been subpoenaed as a witness in the action; (7) has already sat on a trial of the same issue.  This is rare.  An example of this may be a case where someone served on the case, and a mistrial or hung jury occurred, and the matter was tried a second time; (8) has served as a grand or petit juror in a crimal case based on the same transaction; (9) is related within the ninth degree (civil law) of consanguinity or affinity to one of the parties or attorneys; (10) is the guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney; (11) is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution; (12) has a financial interest other than that of a taxpayer in the outcome of the action; (13) is interested in a question like the issue to be tried.  For example, a juror who grows medical marijuana might be excluded on this basis from serving on a person prosecuted for being a medical marijuana care provider.   A peremptory challenge is a method for the Prosecution and the Defendant to remove a prospective juror from further consideration of being selected to serve as a juror for the trial in question.  Each side, Prosecution and Defense, are entitled to the same number of peremptory challenges.  For misdemeanor offenses in which the possible sentence is to 1 year or less in jail, the Prosecution and Defendant is each entitled to up to 3 peremptory challenges.  In felony cases in which the underlying offense carries less than life in prison, the Prosecution and Defendant is each entitled to up to 5 peremptory challenges.  For life offenses (that do not become a life offense because of the Habitual 4th notice filed, if applicable), the Prosecution and the Defendant is each entitled to up to 12 peremptory challenges.  In rare instances, a Judge can grant additional peremptory challenges for good cause shown.   Once a juror is removed through the jury selection process, they are either released from further service, or sent to the jury assembly room for consideration for other trials in the building.  The empty seat in the jury box is randomly filled by another potential juror by the clerk of the Court, and the questioning begins again as previously described. The jury selection process continues until their are no challenges for cause and: both sides have exhausted their peremptory challenges; OR both sides are satisfied with the jury selected; OR one side is satisfied and the other side is out of peremptory challenges to exercise.  The attorneys often choose not to exercise all of their peremptory challenges.  If a prospective juror is removed for one reason, there is a risk that the juror randomly selected to fill the vacancy could be worse.  If the attorney does not have further peremptory challenges and cannot challenge for cause, they are stuck with the unfavorable juror.  Once the jury selection process ends, the jurors and alternate jurors (if any) take a oath to swear or affirm to render a fair and just verdict based upon the evidence.  There cannot be any changes to the jurors and alternate jurors (if any) once the oath is given, outside of a mistrial.   Basically, the Prosecution, Defendant, or Defense Counsel use a peremptory challenge for any logical or illogical reason, except for racism.  A juror with a disability that can accomodated must also be allowed to serve.  Persons of different races, and disabled individuals, can be excluded from serving as jurors as long as the decision to exclude the person was not because of racism or disability that can be accomodated.  The reason can be based upon anything else - answers provided, body language, attitude, juror's prior history such as being the victim of a crime, intuition, etc..  The parties are not asked for their reasons for exercising the peremptory challenge, unless the issue of racism is raised by one of the lawyers.  If so, there is a discussion held outside of the presence of the potential jurors as to that issue.   The jury selection process can sometimes determine what the outcome of the case will be.  This is the reason that sometimes jury consultants are hired to assist with the jury selection process.     The foreperson can influence the opinion of a juror who does not want to make decisions, or who wants to be lead.  There are leaders and followers in this world, which often plays out in the microcosm of a jury.  Peer pressure, the late hour of the day, work commitments, family commitments, are all reasons why a juror may compromise their position on way or the other, even though they are instructed not to.  A peremptory challenge may be based on a feeling the attorney has that a particular individual has a good chance of becoming the foreperson.  In some cases, based upon the limited number of peremptory challenges, you might not like all the jurors selected (this is especially true in District Court cases).  You hope that the remaining jurors will carry the day to render a fair and just verdict.   The type of case before the Court can influence the type of jurors selected. For a child abuse case with a parental discipline defense, the opinions of jurors as to spankings, and whuppings with a belt, can determine the outcome.  An "old school" juror would probably be better for the Defendant, as opposed to a parent who disciplines through loss of privileges and time outs, which the Prosecution would seek. Indeed, the attorneys often attempt to try the case during the jury selection process to lay a foundation for the trial itself.   For a Defendant that is sympathetic and pittied, nurturing individuals such as teachers may make good jurors.  A conservative individual who is not swayed by sympathy, would make a bad juror for the Defendant.  As a side note, the Judge instructs the jurors that sympathy should play no role in their decision. The sentence and punishment is to be determined by the Judge in accordance with the law and should have no bearing in the verdict reached. However, jurors bring their own personal life experiences, attitudes, likes and dislikes with them into the jury room.  A person's humanity is not checked at the door to the jury room.   For cases in which the credibility of the police officers is an issue, jurors from communities that are notorious for complaints and lawsuits against the police may possibly make good jurors.  A person who was the victim of a crime that was helped by the police would possibly make a bad juror.  A person with friends and relatives that are police officers, but who claims that that won't have any impact is suspcious to say the least, and probably should be avoided if at all possible.   Defendants that are minorities sometimes complain that the jury is not composed of their peers.  Minorities, especially in Circuit Court cases that draw a broader population of prospective jurors, sometimes are non existent or under represented in the jury panel assigned to the case.  The objection is rarely, if ever, sustained by the trial Judge. Sometimes Defense counsel will use peremptory challenges on prospective jurors with the hope that a minority will fill the vacant seat.   There are prejudices held by some jurors that must be overcome. There are jurors who don't want to admit their biases because society as a whole looks upon the bias as repulsive and shameful.  If efforts are not made by the Defense lawyer during the jury selection process, the prejudice (if any)could taint the ultimate verdict. If the prejudice cannot be overcome, perhaps peer pressure can keep it from rearing itself throughout the proceedings.    A foreigner who does not speak English may be looked as being less credible than the local police officer.  Sometimes there are cultural reasons behind actions that are misperceived.  A foreigner might yell, argue, and try and negotiate with the police concerning a ticket, because that is how tickets are handled in the home country.  The police officer might classify the behavior of the foreigner as resisting and obstructing.  A juror without cultural sensitivities might overlook the rationale behind the behavior, and judge the situation only from their own experiences. Questions during the jury selection may introduce and educate jurors to cultural issues, and lay the foundation to having the jurors keep an open mind throughout the trial. As a Defense lawyer, the main goal of the process is to keep the jurors receptive to the existence of reasonable doubt, and to accept that there is more to the case than what the Prosecution wants the jury to believe.   Selecting a good jury is not a matter of chance.  It is a skill that is honed through trial experience.  The Defense attorney essentially has to be a good judge of the character of the potential juror as it relates to a particular case.  To do so, the rights questions need to be asked.  Based upon the limited number of peremptory challenges, and the restrictive reasons for challenges for cause, the decisions made by the Defense counsel (with assistance from the Defendant) to exclude potential jurors cannot be squandered.    Hiring the right criminal defense lawyer may be one of the most important decisions you make for yourself and your family. There are many lawyers who claim to do more than what they are able - just as there are many surgeons in the world that are no better than butchers. Do not settle for a legal hack job. Practicing law is a skill that develops over time with experience, commitment, dedication, and God given talent. There are no amateur attorneys at Hilf & Hilf, PLC – only professionals that are guided by the humanity in the individuals we serve, and the drive not to settle for what is easy over what is right.