Vail Daily column: Jury selection and voir dire | VailDaily.com

Vail Daily column: Jury selection and voir dire

In the early summer, when the bike trails open, I like to pull my bike along a favorite trail and pick the wild berries that have benefited from the spring rains and the first long, yawning days of summer sun. I have a favorite spot or two, where the berries grown abundant. All are at high altitude after long, hard climbs that are rewarded with the fresh, sweet berries and the joy of sun glow upon the skin following the long, chill winter’s hibernation.

I should tell you where my favorite spots are. But I won’t. It leaves me feeling just a little guilty. But I’ll deal with it. And the friends I’ve shared my secret trove with will be pleased that I’ve preserved our private bacchanal of berries.

Okay, a stretch now. As Forrest Gump might say, “Pickin’ juries is a lot like pickin’ berries. You only want the ripe ones.” I understand the first leap is a tough one. But yes, indeed, the lawyers get to pick the jury that will hear their case. Do you think it is pure out-of-the-blue cosmic coincidence that the jury that acquitted O.J. Simpson was, with a lone exception, entirely, and literally, a jury of his peers? Sure L.A. has a thick, rich and accomplished minority population, but I assure you, it does not yet comprise 92 percent of the population as the O.J. jury did. That alchemy was the product of the fertile minds of Johnnie Cochrane, et al. More power to them. If not exactly serving justice, they at least well-served their client.

Okay, now, like a snake that’s wolfed a rodent bigger than its head, you’ve consumed the hard part. It gets easier from here on out. All we have left is the peristalsis. Once you’ve accepted — planted in the fertile soils of your cranium, like a ripe berry, if you will — that lawyers get to pick the juries, the rest will trip like water off a swollen falls.

Each of the lawyers may also exclude a preset number of persons from the jury pool for no reason whatsoever. At least no reason that the lawyer needs to disclose to anyone, not even the court.

History of the jury

The technical, formal, legalistic term for lawyers picking their jury is “jury selection.” See, law can make logical sense, at least now and then.

A little history here. Why a jury in the first place?

Thank the U.S. Constitution. Article III, Section 2, clause 3 which guarantees the right to be tried by a jury in criminal proceedings. And the Seventh Amendment bestows such right with respect to civil (that is non-criminal) matters as to “suits at common law where the value in controversy shall exceed twenty dollars.” Remember, the Constitution was written a long time ago — 229 years, give or take — and twenty bucks, like so many things, ain’t what it used to be. Mix in the Fifth and Sixth Amendments, and the various state constitutions, and, voila, if you are charged with a crime, you get to squirm before a jury’s withering (or perhaps somnambulant) gaze.

OK, now, back to pickin’ juries.

Impaneling process

To pick a peck of jurors is called impaneling a jury. And the pickin’ process is called voir dire, which derives from the French for “pickin’ a peck of jurors.” Well, not really. What voir dire does mean is “to speak the truth.” It’s sort of like a job interview. Likely a job the potential juror would rather not be chosen for.

The interviewer in this case is the lawyer and the job applicant, if you will, is the prospective juror. Voir dire is the process by which the prospective jurors are examined to explore their competence, biases, conflicts, prejudices, outlook and those intangibles which might persuade them to lean in one direction or another. The baseline question in the back of every litigator’s mind is this; “Will this potential juror be open-minded in consideration of my client’s version of the matters in dispute?” If the answer is yes, bingo! Come to the front of the class.

But hold on a second. Life, of course, is never quite so easy.

See, the other lawyer has some say-so, too. In a manner of speaking, what’s good for the goose is good for the gander. If the first attorney is salivating with glee, you can bet the second lawyer isn’t going to like the juror much. You see, the second lawyer gets to interview the prospective jurors too. And like choosing up sides for a game of kickball, each attorney gets to make his or her picks. But rather than pick who he or she wants, the lawyers get to pick who it is they don’t want on the jury.

Usually an attorney may exclude a juror for cause — without any limitation on the number of such exclusions. Say, just by chance, every single member of the jury pool just so happens to be the brother, sister, brother-in-law, sister-in-law, parent, child, aunt, uncle, or other endeared of the accused. Out they go! Each of the lawyers may also exclude a preset number of persons from the jury pool for no reason whatsoever. At least no reason that the lawyer needs to disclose to anyone, not even the court. These exclusions — known in legal vernacular as “challenges” — are called “preemptory.” Essentially, they say, “Hey you, out of the pool! And I can keep to myself just why.”

A more unusual challenge is a “challenge to array” which, in essence, protests the entire jury venire — that is, the entire list of jurors in the jury pool — on such grounds as the systematic exclusion of women, blacks, Muslims, young persons, etc. In other words, “drain the whole pool and let’s start over.”

While at first blush, this system may seem unfair, may in fact seem like stacking the deck or rigging the system, you’ve got to remember that the other attorney has all the same rights and, by tilt and toss, an equilibrium is reached. As a further safeguard, each attorney may exercise only a limited number of preemptory challenges. In the last analysis, the goal is to find a suitable and impartial jury of one’s peers so that justice can be fairly and impartially served.

“Mama always said life was like a box of chocolates. You never know what you’re gonna get.” Yup, but voir dire ups the odds of finding one with a sweet berry smack in the middle of it.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, robbins@slblaw.com and robbins@colorado.net.