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The Making of a Lawyer: Voir Dire and Jury Selection

July 27, 2011

The Casey Anthony trial has been all over the news for the past few weeks, and the increased media has encouraged me to brush up on my knowledge of the Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Which leads me to question: whether trial by jury is worth keeping. Trial by jury is not perfect. It costs money, causes delays and, occasionally, leads to perverse outcomes (which is why we have JNOV). Although a jury is supposed to consist of your peers, often the only people who are able to serve for longer, complex jury trials are the elderly, unemployed, and students. What is a jury of peers really supposed to be? Should it be people who are similar to the defendant? Should it be a wide cross-section of the general US population or the population of the jurisdiction of the trial court?

Recently, I had the opportunity to observe a criminal jury trial. In addition, the judge allowed me to observe all sessions within the judges’ chambers as well as any side bar conversations during the trial. Here are some of my thoughts and comments during the jury selection process.

Finally, today, I met Judge Schwarm (JS). He is the Chief Judge of the Fourth Judicial Circuit in the state of Illinois, and my current sponsor through the Judicial Intern Opportunity Program. He invited me to come down to watch a criminal jury trial that was taking place in his county for aggravated sexual assault. He was first appointed to the bench when he was 38 years old, and he has since been re-elected for retention for the last 18 years. Asides from serving as chief judge of the circuit, he also is currently the chief judge of chief judges for the state of Illinois.

When I met him, I meet EP, the public defender on this case, as well as MC, the assistant state attorney prosecuting this case. Just a disclaimer, JS has given me permission to blog about anything that is on the record at court.

During pre-trial conference in the morning, EP submitted a motion concerning the child witness for the prosecution, and her competency to to provide accurate testimony since she is only 6 years old. According to JS, the oldest a child has been deemed capable in Illinois case law has been 6 years old. So this is potentially a matter that can be brought up in appeal. After hearing both sides, JS agreed to have a competency hearing behind closed doors with all parties present before ruling on whether the jury would be allowed to hear the child’s testimony.

We headed to the courtroom, and the voir dire process started for the jury.

Today, there was a total of 49 potential jurors who were called to court. JS started by swearing the jurors and bailiffs.  He started out by thanking the jurors for their service. Introductions were made all around, including myself as the judicial intern. JS then announced the charges against the defendant:
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Count 1: Violation of ILCS 5/12-14(a)(2). Aggravated Criminal Sexual Assault
(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during…the commission of the offense:……(2) the accused caused bodily harm….; or

Count 2: Violation of ILCS 5/12-13. Criminal Sexual Assault
(a) The accused commits criminal sexual if he or she: (1) commits an act of sexual penetration by the use of force or threat of force; or…..
(b) Sentence: (1) Criminal Sexual Assault is a Class 1 felony. (2) A person who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (a)(2) after having previously been convicted of the offense of criminal sexual assault, or who is convicted of the offense of criminal sexual assault as defined in paragraph (a)(1) or (1)(2) after having been previously been convicted under the laws of this State or any other state of an offense that is substantially equivalent to the offense of criminal sexual assault, commits a Class X felony for which the person shall be sentenced to a term of imprisonment of not less than 30 years and not more than 60 years…
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The defendant in this case, if convicted, would be charged as a Class X felony because he had a prior criminal record that allowed the prosecution to proceed in this manner. JS announced that the trial was expected to last three days, and then he called on the attorneys to begin the voir dire process (which will be in Part 2)

I couldn’t help but notice that all the potential jurors that had been called were pretty much white. There was not a single Asian, African-American, nor Hispanic. Apparently, Fayette County is predominantly white, like most other counties in this area of Illinois. It phrase, a “jury of your peers” stuck out in my mind, because it was in essence, a jury of peers, white-rural Americans.

Afterwards, all the parties (including me) met in the judges’ chambers to select the jury. Overall, there were 13 causal motions granted by the judge, which he told me is a new personal record for him. There were then peremptory challenges made. According to 725 ILCS 5/115-4, the defendant may have 10 peremptory challenges in a case where punishment may be imprisonment in a penitentiary. And the prosecution has an equal number of peremptory challenges.
We headed back to the courtroom, and the judge announced the jury, swore them in, and went over the formalities of court, rules of court, the importance of being a juror, and the juror’s responsibilities. He further stressed the importance of not talking about the case during the trial, but explained that they could talk about the case once the trial is completed.

Some comments/observations during the voir dire process. This process is super long!!! I guess it’s only fair to ensure that the defendant does, in fact, obtain an impartial jury, but I wonder if there are some procedures to hasten this process. Jurors being questioned routinely lie about heir positions on issues they think could get them bumped. There was one juror who was laying it on a bit thick when he said that he knew one of the witnesses pretty well, and he would definitely give more credit to their testimony. He obviously didn’t want to be there and didn’t relish the idea of missing 3 days from work.

So any ways to improve jury duty?

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