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Fiandach & Fiandach (Rochester NY)


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Selecting a Jury

February 14, 2008

As much as I'm reluctant to admit it, I've finally come to the conclusion that voir dire may very well be one of the most, if not the most important part of a jury trial. Properly used, this multi-headed tool accomplishes at least three recognized objectives. First, and perhaps foremost, it acquaints the jury with you. I say foremost because this is a function that should never be understated. While not a difficulty faced by the prosecution, the defense should always be cognizant of the simple fact that public attitudes about alcohol-influenced operating offenses are such that defense counsel will frequently be looked at with the same degree of affinity as River City's infamous thirteen numbered balls. For the uninitiated, what we're saying is that when one undertakes the defense of a client charged with an alcohol-influenced operating offense, societal values are such that you will be viewed as though you are the devil's tool. Your first goal, therefore, if not to make the panel like you, is to assure that they don't detest you.

Goal two is somewhat like the traditional role of the Vice President. Conventional wisdom tells us that this prestigious and largely powerless office is used to float trial balloons for potential presidential positions. So it is with voir dire, with one major difference. On voir dire you should introduce the major positions you will take upon the trial of the action. Unlike the Vice President, however, you will have a choice of the electorate. If you don't like the voters, you'll at least have a limited opportunity to change those who may not agree with your position. At this point it should be stressed that this function is not one of education. While most writers will tell you that your role on voir dire is to educate, I don't agree. You simply cannot hope to change a lifetime of thinking within the limited parameters afforded under the CPL and most trial judges. As opposed to education, I like to think that we're engaged on a search to find those that already agree or at the minimum can agree with our positions. Approached in this fashion, you'll find that it is much easier to put on a suit than it is to cut it from whole cloth.

Goal three is reasonable doubt. Here you must impress the potential jurors with the importance of this basic principle and attempt to determine if they will really employ it.

So how does one accomplish these all-important goals? Well, the first thing is to take a long look at your introduction. Scrap once and for all the my name is Edward Fiandach and it is my pleasure to be here today representing Vernon Strong. After hearing the Judge and opposing counsel, they know who and what you are and probably don't care for either. Thus you must abruptly seize the day by dramatically changing the tone of all they've heard up to that point in time. Although executed quickly, it is not an easy thing to do and must be simultaneously carried out on several planes. First, you should break dramatically with the appearance of all that they have seen thus far. You should be warmer and infinitely more personable. While at first glance this may seem like I'm suggesting a checked coat and an UltraBright smile, this is definitely not the case. Your first break is far more subtle. Memorize the juror's names. Seriously, it is simply not that hard to do. In the normal case, you'll have at least fifteen minutes with little or nothing to occupy your thoughts. Make good use of the time. Scan the panel and link their faces with their names. Secondly, trash your yellow pad. If you can't get rid of it altogether, at least put it out of your immediate reach. In the suggested lines of questioning that follow, you'll see that the themes are rather easy to memorize. What's more, when you're done with your questioning you'll immediately have to make your choices. There is simply no reason for defense counsel to take copious notes of each response. Thirdly, think of an unconventional opening line. As those of you who attended last year's New York State Bar Association seminar Handling the DWI in New York know, for years my first move has been to stand before the panel and quickly pluck a few pieces of dalmatian fur from my jacket. While doing this I make a comment regarding the fact that I've got this old dalmatian that does two things, shedding and well, we'll leave the other thing out. After a mild chuckle I ask the panel if any members have a dog, and follow that question up with what kind. I then use this as a springboard to my first issue, circumstantial evidence, by giving them a brief story about when my dog was a pup how he tore the stuffing out of my couch. I then walk into a series of open-ended questions about their dogs. For those jury members without canine companions, I slide into a similar series of questions relating to their children's antics, letting each have a chance to tell a humorous story. Here the late Dean Martin has something to offer. Dean was a master of making you think that he lost control during a skit. Thus, I'll laugh, following the lead of the remainder of the panel even to the point of letting the perspective juror think they've destroyed my thought pattern and timing. Why? Because it gives them the feeling that they are in control. Control is something that human beings instinctively crave and nobody else that day has let them have it. One caveat here: think Dean Martin and not Jerry Lewis. With all due respect to the latter, given a similar situation he would get hysterical in a fashion totally out of keeping with the mandated reaction. You have to keep your feigned disruption on a level dictated by the panel.

So much for openers, what should you do once you've opened? Here, think about your business card. Chances are it matches you stationary which in turn matches your envelopes and may even match that gearhookey on your desk that has your name. The same goes for the way you dress when you're going to court. Your socks match your shoes or your skirt matches your blouse. Incredibly, however, when some get to court, everything they know about matching seems to fly right out the window. Voir dire goes to one point, the opening and cross-examination to another, while the summation turns out to be a weak effort to tie up three distinctly different themes. A trial must be like a symphony. Although one movement may be a waltz and another may be a march, they are nonetheless related in theme and key. So it should be with a trial. In voir dire, you must allow the jury to develop the themes you will develop on cross-examination and drive home on closing. Here your role is a little like a landscape to a painter; you inspire the jury to paint the picture you want them to see.

And what is that picture? Here I must defer to your defense at trial. Even so, there are a couple of absolutes. As we all know, to convict for violating ' 1192(3), the People must prove that the motorist failed to possess the necessary physical and mental abilities to operate a motor vehicle as a reasonable and prudent driver. Thus, if your client was stopped for driving sixty-five miles per hour on an interstate highway marked for fifty-five, you should get the perspective jury members to acknowledge that they have operated in the same manner and that such operation is reasonable and prudent. In like fashion, I recently tried a case where my client was involved in an accident as he attempted to pass on the shoulder of a two-lane highway. Here I proceeded to ask the jurors whether they had driven on this road, whether they had ever passed on the right and whether they thought it was a reasonable and prudent thing to do.

Perhaps the greatest use of voir dire can be had when attacking the accuracy of a Breathalyzer7 or similar test. Here however, one thing must be borne firmly in mind. Jurors are extremely unreceptive to an argument which attacks all breath-testing devices generally. If you plan to use an expert to say this or that device is generally unreliable, save your client's money and have him or her plead. Over the years I have had an opportunity to see video tapes of mock DWI jury deliberations. One thing which stands out is the extreme reluctance to find that a particular device is incapable of giving an accurate result. Believe it or not, they will actually talk about the brother-in-law who was tested and thought the result was right. They will also consider what they perceive to be the precedential effect of their decision. A far better position to take is that on this occasion the test was inaccurate. This affords you the luxury of candidly telling them that you can't explain exactly why, but that the results just don't add up. This technique works particularly well in the high test cases where your client did reasonably well on the field sobriety tests. Assuming you have had an opportunity to explore his or her performance at a pre-trial hearing, you can approach this defense in the following fashion:

C Have you ever backed a cake?

C What goes into the oven?

C So you put the pan with the batter in the oven . . .

C How long does it take?

C Assume you return a half hour later and nothing at all has happened. What went wrong?


Here you should let the juror develop the hypothesis that it could be that the stove wasn't plugged in, the heating element was broken, a fuse or breaker could have blown, or if it was gas the pilot light did not light the gas. You can then sum it up for him or her by saying:


C You know by comparing the expected results with what happened that something went wrong.


C We're not sure what, but we know something went wrong, why?


Let him or her explain, but prod if necessary to the conclusion that they know by comparing the expected results with what happened that something went wrong. Then move to another juror:


C How about you Mr. Jones, assume that you just had your car filled with gas and that about one mile after leaving the filling station you notice that the gage reads empty. What went wrong?

After the juror sets forth three or four things that could have occurred, sum it up with, Is it fair to say that you really don't know what went wrong, but you know it was something? The possibilities are endless. Try asking the panel if any member ever had a computer lock up and follow the same analysis. When you complete this avenue, show them how it interacts with reasonable doubt in the following fashion:


C Now you understand that Mr. O'Rourke must prove his case beyond all reasonable doubt. Thus, if the results of the test leave you with any reasonable doubt as to the accuracy of the test, even though no one has been able to prove exactly what went wrong, what will your verdict be?


Here I especially like to move through the entire panel by name and have them say not guilty. On summation you will remind them of this point by saying although I can't tell you exactly what went wrong, the results, just like Mrs. Cadori's cake or Mr. Trostle's gas tank or Mr. Wentz's computer, clearly show us that something went wrong with Vern's test.

Speeding, traffic violations and even accidents should be approached and exhausted during voir dire. Take speeding for instance. If your case is being tried in a small or medium size town or city, chances are overwhelming that the panel members have driven on the roads that will be the substance of the case. Moreover, if they haven't sped on those roads, they've seen it happen. Bearing in mind that the common law test is reasonable and prudent operation, you can actually make the fact that your client was speeding work in your favor. Witness the following:

C Now, Ms. Iverson, have you ever driven on the Reynolds Expressway?


C And it's a large six lane highway ?


C Now I guess the posted speed is 55 miles per hour, but is it fair to say that people frequently do 65 through there?


C Have you?


C And that was reasonable, wasn't it?


C And prudent?


Fender bender type accidents can sometimes be approached in a similar manner. Recently I used the following:

C Now Mr. Pender, on a two lane road, have you ever passed a car that is making a left hand turn by using the shoulder.


C Have you ever done it on Hancock Street?


C You thought it was reasonable?


C . . . and prudent?


Again, on summation, I reminded the jury that my client had pulled to the shoulder, just like Mr. Pender.

A plain fact in many of our cases is that our clients cannot afford expert witnesses. Even so, as we pointed out in Volume 1, Issue 9, many expertless defenses exist. The blood breath partition ratio can be one such defense and can be broached during jury selection in the following manner.

C Mrs. Alexander, assume you go to buy a pair of shoes. Would you purchase an average size?


C Of course not, you'd get a pair in your size. The same with a skirt or blouse or any other item of clothing because we're all different.


C Now with the breath test you may hear testimony about an average relationship that some say exists between blood and breath alcohol, if you're left with any reasonable doubt at all about whether Mr. Stong is average, what will your verdict be?


The foregoing are only a couple of suggestions. Even so, one fact should be clear: voir dire is not soup, it should never be stock or canned. It must be tailor made to fit the particular facts of your case. To be successful it must serve to draw the jurors into the facts early on while allowing them to subtly identify with the unfortunate set of circumstances which had confronted your client.

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