"The Secret to Spotting Favorable Jurors"

Bigger text (+)Smaller text (-)

"The Secret to Spotting Favorable Jurors"

by Elliott Wilcox

Every day, lawyers blatantly lie to potential jurors during jury selection.

In courtrooms across the country, they repeat the exact same lie. You've probably heard this lie repeated in open court, and there's a good chance you've said it yourself. So what is this oft-repeated lie? 

"Ladies and gentlemen, we're looking for a fair and impartial jury."

Bull. No lawyer in his right mind wants a "fair and impartial" jury. You want the most biased jurors possible -- just so long as that bias goes in your favor. You know that if you can select a jury that's receptive to your client's case, the battle is half-over. That's why jury selection can be one of the most important elements of your entire trial.

The two important goals of jury selection are picking jurors who will favor your client, and eliminating the jurors who will favor your opponent. But how do you identify those two classes of jurors?

As you've heard me say before, it's essential to get the jury panel talking if you want to discover what attitudes, beliefs, and life experiences they'll bring into the jury deliberation room.

But sometimes, jurors talk too much.

For example, let's say you're the prosecutor in a DUI case and one of the potential jurors says, "I hate what you're trying to do here today, and I'll never agree with you. I LOVE to drink and drive. There's nothing in the Constitution that restricts my right to travel between the states, is there? No, of course not! This ain't communist Russia! I can drive wherever I want to drive, right? The Declaration of Independence says that I've got the inalienable right to life, liberty, and the pursuit of happiness, right? Well, drinking makes me happy, so that's a protected right. I don't care what so called 'evidence' you put on today, there's no way I would ever vote 'Guilty' in this case."

Even if this is your very first time selecting a jury and you have absolutely no idea what you're supposed to do, you know that you need to strike this guy from the jury, right? Now that you've successfully identified him as a definite strike, does that mean you should stop talking to him? Definitely not!

But do you know why you should keep talking with him?

It's not because you're trying to learn more about him so you can re-evaluate whether or not to keep him on the jury. This guy is so bad for your case that you'd probably be willing to exercise all of your peremptory strikes just to get rid of him. 

The reason you want to keep him talking is so you can turn him into a "sounding board" and learn who else feels the same way that he does.

Here's how you'll use this opinionated juror to your benefit. Start by asking your strongly opinionated friend another question that is designed to keep him talking. It doesn't need to be a mind bender of a question, just something open-ended that lets him continue expounding on his previous thoughts. For example:

  • "Why do you feel that way?"
  • "How long have you felt that way?"
  • "How/where did you develop those beliefs?"

If you don't know what to ask, just use simplest follow-up question in the world: "Why?" It doesn't matter what question you ask, just so long as it's open-ended and gets him talking. (The best words to use when asking open-ended questions are "Why?" "How?" "Explain..." or "Tell us...")

Now here's the secret to spotting favorable jurors. When you ask your sounding board the follow-up question, you're not really listening to him or looking at him. After all, you don't really care what he says -- he's got less chance of sitting on your jury than O.J.'s chances of asking Det. Mark Fuhrman to be a character witness at the sentencing hearing. [Yeah, I had to go there] :)

If you're not focusing your attention on the opinionated juror, where are you looking?

When you ask your follow-up question, you're not looking at the talkative juror...

You're looking for the guy in the back row who's nodding his head in agreement

What you're going to be looking at is how the other jurors respond to him. Some of your potential jurors might agree with what he's saying, and others might disagree. As he continues talking, some of these jurors will express their feelings through their body language. Your job is to pick up on these non-verbal clues so you can identify which camp the jurors belongs to.

When you ask the follow up question, expand your visual focus. Don't lock in on the opinionated juror. Look at the entire jury panel, keeping your antennae raised for any indicators of agreement or disagreement. Here are some of the clues you'll want to look for:

  • Nodding head
  • Shaking head
  • Leaning towards (or away from) the talker
  • Looking towards (or away from) the talker
  • Rolling eyes
  • Raising eyebrows
  • Furrowing brows
  • Making eye contact with you or with opposing counsel
  • Sighing
  • Looking at watch or at wall clock
  • Crossing or folding arms

Once you identify the other potential jurors who agree (or disagree) with your opinionated juror, you have two options. If you think the other juror agrees, get him to voice his opinions. If he speaks long enough, he might say something that lets you strike him for cause, too.

The two easiest follow-up questions you can ask are, "[NAME], what do you think about what he said said?" or "[NAME], how do you feel about what he said?" Either question forces him to give more than a "Yes/No" response, improving your chances that he'll say something worth noting.

If you think you've found a juror who will favor your client's case, you'll want to keep him on your panel. In that situation, you might not want to ask him anything, and simply make a positive note on your legal pad and hope your opponent doesn't pick up on the body language. (Keep in mind, however, that it's always risky to expect your opponent to overlook anything.)

Many trial lawyers think that strongly opinionated jurors, especially those who vocally disagree with you, are problematic. Nothing could be further from the truth. These opinionated jurors can serve as a sounding board to help you identify favorable jurors, and they can also help you ferret out unfavorable jurors. Keep 'em talking, and your jury selection will dramatically improve!

Give Me a Clue!

Tips for Testifying  Tips for Testifying

Tips for Speech Evaluation  3 Tips for Speech Evaluation
The Art of Evaluation  The Art of Evaluation

Tips for Direct Examination  6 Tips for Direct Examination

NOTICE: Elliott Wilcox is not affiliated with Freedom School.
NOTICE: If anything in this presentation is found to be in error a good faith effort will be made to correct it in timely fashion upon notification.
       Specialty Areas

All the powers in the universe seem to favor the person who has confidence.

More & Other Information - Resource Pages
Admiralty related itemsBelligerent Claimant
BondsAttention Signing the Constitution Away
Citizenship / nationality related itemsEducation
Jerry KirkAware
JurisdictionLaw related items
Lewis MohrLuis Ewing
MoneyOath related items
Reading MaterialReading Room
StuffTax matters
Travel related
CENTRAL (GMT -06:00)
NOTICE: The information on this page was brought to you by people who paid this website forward so that someone such as you might also profit by having access to it. If you care to do so also please feel encouraged to KEEP THIS SITE GOING by making a donation today. Thank you. Make donation with PayPal - it's fast, free and secure!

Freedom School is not affiliated with the links on this page - unless otherwise stated.

Freedom School information served for educational purposes only, no liability assumed for use.
The information you obtain at this site is not, nor is it intended to be, legal advice.
Freedom School does not consent to unlawful action.
Freedom School advocates and encourages one and all to adhere to, support and defend all law which is particularly applicable.
Information is intended for those men and women who are not "US CITIZENS" or "TAXPAYERS" - continued use, reference or citing indicates voluntary and informed compliance.

Freedom School is a free speech site and operation as there is no charge for things presented
this site relys on this memorandum and others in support of this philosophy and operation.
The noteworthy failure of the government or any alleged agency thereof to at any time rebut anything appearing on this website constitutes a legal admission of the fidelity and accuracy of the materials presented, which are offered in good faith and prepared as such by Freedom School and third parties affiliated or otherwise. If the government wants to assert that any of the religious and/or political statements that are not factual appearing on this website are in error, then they as the moving party have the burden of proof, and they must responsively meet that burden of proof under the Administrative Procedures Act 5 U.S.C. §556(d) and under the due process clauses found in the Fifth, Sixth, and Seventh Amendments to the national Constitution BEFORE there will be response to any summons, questions, or unsubstantiated and slanderous accusations. Attempts at calling presented claims "frivolous" without specifically rebutting the particular claim, or claims, deemed "frivolous" will be in deed be "frivolous" and prima facie evidence that shall be used accordingly. Hey guys, if anything on this site is found to be in error a good faith effort will be made to correct it in timely fashion upon notification.

Presentation CopyrightŠ 2007, 2019
All Rights Reserved