Jury Selection: Simple Rule 11: The Playing Doctor Rule

 Posted on September 08, 2009 in Uncategorized

Back to our originally-scheduled program:

So you're in jury selection, and you want to get the jurors talking about the things that maybe they're not used to discussing in front of 60 near-strangers. What do you do?

Well, everyone knows The Playing Doctor Rule: I'll show you mine if you show me yours, right? That's our 11th Simple Rule for Better Jury selection. If you want to see theirs, you've got to show them yours.In jury selection, show them what?

Whatsoever a man soweth, that shall he also reap.

You want truth? Tell them the truth. If you lie to your jury, they'll lie to you.

You want depth? Go deep. If you only talk to the jury about shallow things, they'll reciprocate.

If you want your jurors to talk about their prejudices against the minority group your client belongs to, what do you need to talk about? Your own prejudices.

What's that you say? You don't have any prejudices? Bullshit. Everyone has prejudices. It's entirely natural; we're hardwired by natural selection to prefer members of the group we identify with over members of other groups. We can overcome our hardwiring, but not by pretending the hardwiring doesn't exist.

If you haven't committed the introspection necessary to acknowledge your prejudices, you're not dealing with them. More to the point of this post, you can't expect your jurors to do any more than you're willing to do yourself. Imagine: you get up and say, "I don't have any prejudices. Do any of you?"

What are your personal issues in your client's case? When you first heard about the case, what was your "yeah, but...", your reservation?

"Yeah, but he shouldn't have been there in the first place"?

"Yeah, but he's a gang member"?

"Yeah, but this is his third DWI"?

This "yeah, but", if you can identify it, might be a good place to start with the jury. Why? Several reasons, but this should suffice: Because they'll probably have the same "yeah, but", and if you can at least mitigate (if not eliminate) that factor before the prosecutor gets up to make his opening statement, there's a chance that the presumption of innocence will last at least until you get up to make yours.

Show them how?

Just tell them, however you're uncomfortable doing it. Uncomfortable? Yes. You're going to ask the jury to do something uncomfortable, sharing intimate truths with semi-strangers; you can't expect them to do that if you remain within your comfort zone. Push a little bit farther than is easy for you. And for God's sake tell them the truth. This is not a time to be making up cute little stories.

If the truth is that your client's tattoos made you nervous, tell the jurors that. If that's easy for you, tell them more specifically how the tattoos made you feel-in danger, frightened. If that's easy, push a little farther out-talk about what you imagined going through his mind? It's okay to show that you don't feel the same way anymore (by sitting close to your client, touching him), but don't go into how you got over it-that's what you want the jurors to tell you.

Do you have the audacity to tell the 12 people who will be deciding your client's fate that you found him scary? If you don't, why would they admit to you that they find him scary?

Show them yours. They'll show you theirs.

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