Anatomy of A Trial: Voir Dire: Attorney Tim Sledd Explains Jury Selection

[00:00:00] We talk about a criminal trial as if it was a single event, but of course that's not entirely true. A trial is made up of multiple parts starting with jury selection and going all the way to the delivery of a verdict. Not all of these stages of a trial always get attention, but each of them can be tremendously important. In fact, some attorneys claim that a trial can be won or lost in the jury selection process.

[00:00:28] And that is something that happens before any case whatsoever is actually made to that jury.

[00:00:34] But if you're not an attorney, it can get confusing trying to understand these stages of a trial and exactly why each is a crucial part of the process.

[00:00:43] That is why we have decided to launch a new occasional series we are calling Anatomy of A Trial.

[00:00:49] In each segment, we will talk to an experienced trial lawyer who will go in depth with us about a particular piece of a trial.

[00:00:59] Tim Sledd.

[00:01:01] Tim Sledd. Tim is the chief public defender in Lawrence County, Indiana, and he's also one of the more popular guests we've had on this program. He has a real gift for explaining things in an easy-to-understand way. It is always a pleasure to speak with him.

[00:01:16] We will be talking with Tim about voir dire, the process of jury selection. How are jurors picked? What kind of strategies do lawyers use when looking for jurors? And how do attorneys try to build a rapport with jurors even before opening statements are delivered?

[00:01:34] My name is Anya Kane. I'm a journalist.

[00:01:36] And I'm Kevin Greenlee. I'm an attorney.

[00:01:39] And this is The Murder Sheet.

[00:01:41] We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases.

[00:01:48] We're The Murder Sheet.

[00:01:49] And this is Anatomy of a Trial.

[00:01:53] Voir dire.

[00:01:54] Attorney Tim Sledd explains jury selection.

[00:02:42] Start with the obvious question. What is voir dire?

[00:02:45] Okay, voir dire is the process of jury selection.

[00:02:48] That's the easiest way to put it.

[00:02:51] There's two parts, two component parts of a trial that very few people get to see.

[00:02:56] Jury deliberation.

[00:02:57] That's secret.

[00:02:58] Happens in a room.

[00:02:59] I've never seen jury deliberation.

[00:03:02] But the other thing that people rarely get to see is jury selection.

[00:03:07] And that happens at the front end of the trial.

[00:03:11] It's not secret.

[00:03:12] A person could come sit in a courtroom and watch jury selection.

[00:03:16] But it's also not something you're going to see on your live streams very often because jurors are afforded a – or potential jurors are afforded a certain amount of respect and dignity before they get selected.

[00:03:31] We want jurors to feel confident and safe throughout the process so they are protected from being videoed or known by many people.

[00:03:42] In fact, mostly the lawyers get to know who they are by name.

[00:03:46] And when they're in – in Indiana, when you're in a courtroom selecting a jury, you don't – the jury, you don't get to refer to them by their name.

[00:03:53] You have to refer to them by a number that they've been assigned by the court.

[00:03:57] How is the jury pool selected?

[00:03:59] So first, the jury pool is – it's in Indiana.

[00:04:04] It's selected by a rule, a jury rule.

[00:04:08] And the Supreme Court of Indiana has authorized certain public lists to be utilized to create a jury pool.

[00:04:15] That public list could be a Bureau of Motor Vehicles list for people who have their driver's licenses to a certain geographic location.

[00:04:23] Or it could be a voter registration logs, property ownership records can be used to pool names and addresses.

[00:04:31] So that creates what's called the jury pool.

[00:04:34] From the jury pool, then courts and the clerk of the courts can select people that will be placed on a jury veneer.

[00:04:44] And that can – it's a mass group of people from the jury pool that become a jury pond for a case.

[00:04:52] And then from the jury pond, you select the puddle, the actual jury for the case.

[00:04:59] I'm curious.

[00:05:01] Let's say hypothetically that Anya is a member of the jury pool.

[00:05:04] What sort of information would the attorneys on both sides have about Anya if she is a prospective juror?

[00:05:11] Court to court to court gather different levels, quality, and quantity of information from the jury pool to create the jury veneer.

[00:05:21] Typically, they're going to want to know – the questionnaire that goes out to folks from courts to determine whether or not these people are going to be on a jury veneer.

[00:05:32] It's going to want to know where they live.

[00:05:34] It's going to want to know what level of employment or type of employment they are, how long they've lived in the county, whether or not they have a criminal record, whether or not somebody in their family is involved in a present lawsuit or not.

[00:05:45] Have they served on a jury before?

[00:05:48] What's the degree of their education?

[00:05:50] Do they read and write English?

[00:05:52] Those sorts of questions because there are qualifications to be a juror.

[00:05:58] And those qualifications are what I would call like base qualifications that they're also controlled by a jury rule in most jurisdictions.

[00:06:08] In Indiana, to be on a jury, you have to be a United States citizen.

[00:06:12] You have to be an adult, 18 or older.

[00:06:15] You have to be a resident of the county.

[00:06:17] You have to be able to read, speak, and understand English.

[00:06:20] You can't be physically or mentally disabled in such a way that you wouldn't be able to perform the duty of a juror.

[00:06:26] You can't be under a guardianship.

[00:06:28] And in criminal cases, you can't be a law enforcement officer.

[00:06:31] So those are automatic disqualifiers.

[00:06:33] The lawyers don't even necessarily need to get to asking you any questions.

[00:06:38] So to answer your question, Anya would fill out a questionnaire that gets mailed back to the court.

[00:06:45] So this is we're going from the jury pool to the jury veneer, sort of the jury pond.

[00:06:52] And the jury pond, all of the participants in that pond, their questionnaires get handed to the lawyers in the case under seal, meaning with strict instructions on what can be done with them.

[00:07:05] Can't photocopy them.

[00:07:07] Can't electronically copy them.

[00:07:08] Can't disseminate them.

[00:07:09] We can share them with members of our staff.

[00:07:12] We can brainstorm about them.

[00:07:13] We can review them with our clients.

[00:07:16] Prosecutors can have law enforcement officers review them.

[00:07:20] So you can utilize tools to sort of say, do you know these people?

[00:07:23] What do you know about these people?

[00:07:24] Anything else on here that we should be concerned about?

[00:07:26] But those questionnaires then have to be turned back into the court.

[00:07:30] But the information on those questionnaires is very basic and it typically gets to those base qualifications that are controlled by the Indiana Jury Rule 5, which is disqualification.

[00:07:44] Generally speaking, why is jury selection and voir dire so important for the parties?

[00:07:50] So this is one of the things that I find interesting.

[00:07:54] So I've been a trial lawyer for 20 years.

[00:07:59] And then two years before that, I worked with – while I was in law school, I worked for a group of trial lawyers at the Federal Defenders.

[00:08:07] And throughout my experience as a trial lawyer, there's been different levels of significance placed on jury selection.

[00:08:16] All the way from lawyers who – mentors of mine who have told me it's 12 rocks in a box.

[00:08:22] Shake them up and see what you get.

[00:08:24] Down to it's the most important part of your trial is picking the right jury.

[00:08:29] The older I've gotten, the more I lean to the latter than the former.

[00:08:33] As a prosecutor, I was very much aligned with the former.

[00:08:37] It's 12 jurors.

[00:08:38] Get them in there.

[00:08:39] Let's present the facts.

[00:08:40] Present the law.

[00:08:40] Present the evidence.

[00:08:41] It's going to shake out.

[00:08:42] Being on the defense side, it's very important that the – to me, that the jury panel be largely people that I can select.

[00:08:53] Why is that important then was your question right?

[00:08:56] I mean it's the constitutional right to have a jury belongs to the defendant and it belongs to the defendant so that the allegations made by a government against an accused are being tested by a group of that person's peers.

[00:09:11] When that was created constitutionally, we lived in a much smaller society, a more agrarian society where your peers were really your peers and there were value judgments that your peers were going to be making based upon their knowledge of you or your family or your trade that are long gone now.

[00:09:31] But it's still important, the defense lawyer's job and the judge and the prosecutor's job is still important to be picking a group of people that are going to be hearing these facts that are present, are willing, are engaged, are going to really wrestle with the issues, aren't going to make book cover judgments on very, very important issues.

[00:09:58] Because this is because this is, again, a constitutional service that they're providing to afford a constitutional right to a citizen who's been accused.

[00:10:08] And that's what every criminal defendant is, guilty or innocent.

[00:10:11] At the point of that trial, they are just an accused citizen and they have that right.

[00:10:15] How do you read a prospective juror as far as when you're trying to determine this person might be somebody I want on the jury for my client?

[00:10:23] Great question, because in different situations, there's different ways to read a prospective juror.

[00:10:33] There are courses on how to read body language.

[00:10:37] And I was trained at one conference on trying to, by the way people sit, by the way they answer questions, by the smirks and smiles that they give you.

[00:10:47] Are they there?

[00:10:49] Are they on your side?

[00:10:50] And in the heat of a battle, in the heat of voir dire, it can be next to impossible for me to really be gathering that.

[00:10:58] And that's why having a second attorney at the table who's paying attention to body language and intonation is important.

[00:11:07] But we get to that primarily by way of questions.

[00:11:11] For those that haven't experienced voir dire, typically the judge controls the beginning of the process.

[00:11:20] So in a recent trial that I was involved in, we had two panels or two jury pawns of 60 from which to draw our ultimately 14 jurors that we were going to need, 12 and two alternates.

[00:11:35] So we did an 8.30 a.m. to noon pool of 60 and then at one o'clock reconvene with a new pool.

[00:11:45] But that first group of 60, 12 got to sit in the jury box and then the remainder were out in the gallery.

[00:11:53] And we were only allowed to address for questions purposes, the 12 that are in there.

[00:11:59] So the judge starts off with the disqualification questions.

[00:12:03] Raise your hand if you're not a U.S. citizen.

[00:12:05] Raise your hand if you don't understand what I'm saying right now.

[00:12:08] Raise your hand if you are under a guardianship.

[00:12:14] And then those are dealt with that way.

[00:12:16] Then after – in some jurisdictions, judges get to control much of voir dire.

[00:12:22] They lead with the questions and then the lawyers respond.

[00:12:25] In the county that I practice in, the judges usually ask those basic questions and then they turn it over to the state to ask questions.

[00:12:32] Then the defense gets to ask questions and then there's striking.

[00:12:35] So kind of zeroing in on to – into your question then is how do I weigh a juror whether or not a juror is on my side or not?

[00:12:47] It comes down to the questions.

[00:12:49] How responsive to my questions are they?

[00:12:52] What are they saying?

[00:12:53] You really have to listen.

[00:12:54] And that's a skill that I've had to develop over time is listening to the jurors versus wanting the jurors to listen to me.

[00:13:01] I'm really trying to flesh out understanding their demographic from the questionnaire, understanding their life experience that I can gain from the questionnaire and asking more about that.

[00:13:12] There's going to be certain professions that I'm – in some cases that I want jurors from.

[00:13:17] There's going to be certain professions that I don't want jurors from, you know, indifferent – depending upon the fact pattern.

[00:13:23] So in a fentanyl case, a dealing resulting in death case, I'm really interested based upon – in getting jurors that are able to understand the science, able to understand how we get different levels of toxicity.

[00:13:38] In other cases where it's going to be more of a moralistic defense, I don't want engineers on my case.

[00:13:48] You know, somebody that's going to be able to write it.

[00:13:51] So I'm going to be – but the prosecutor may be just on the flip side.

[00:13:54] Let's say you've got a murder situation where you have two bad actors, but one guy kills the other guy, and so you end up in a jury trial.

[00:14:04] Well, a prosecutor may say, I want an engineer here because I don't want my jury to be focusing on did this guy deserve to die?

[00:14:12] Was this the right guy to do it?

[00:14:13] You know, that's a not guilty and a murder.

[00:14:16] I want them to say, no, you can't.

[00:14:18] Here's the rules.

[00:14:19] Letter of the rules.

[00:14:20] Couldn't have happened.

[00:14:21] It doesn't matter about sort of all the moralistic or humanistic sort of touchy-feely stuff.

[00:14:27] It's hard science.

[00:14:29] Whereas in a fentanyl case, a prosecutor may say, I don't want any engineers and I don't want any scientists on this because I want somebody to say I feel bad because there's a decedent.

[00:14:40] There's a victim of an overdose who's dead, and I don't want somebody to be thinking about how they got there.

[00:14:48] It can vary based on the charge and the case, but how I get to know whether somebody's on my side is a lot by feedback of questions that I'm asking and then some body language hocus-pocus that I'm not sure if there's really good empirical data on.

[00:15:05] But there's a lot of people that make money teaching jury consultation based upon eye contact, posturing, whether they cross their arms and lean back or whether their hands are on their knees and they lean forward, whether or not they're in.

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[00:18:37] One question I have, you mentioned the kind of battle of voir dire.

[00:18:41] Is it typical in your experience that the defense or the prosecution walks away having like truly won voir dire,

[00:18:47] or is it something that's often a little bit more ambiguous than that?

[00:18:50] I think it's often very ambiguous.

[00:18:54] I have believed that I picked a great jury before, and then to find out that the jury didn't much care for me, my case, or my client.

[00:19:04] And I've often picked juries that I'm just like, oh, I don't like who's on this jury.

[00:19:08] I don't like who's on this jury.

[00:19:09] And find out that they were solidly open-minded to the case that we were presenting.

[00:19:18] You can only do your best in jury selection.

[00:19:21] And for my perspective is you can't believe that your case is won and lost in jury trial.

[00:19:27] It can be won and lost in jury trial, but you can't.

[00:19:30] There's so much to the actual trial that can – if you've picked a jury that is willing to keep their mind open to the end.

[00:19:39] And I think that that's – if the prosecution has a tough case, that's something they've got to make sure they get is a jury that's going to keep their mind open to the end.

[00:19:48] Every defense case is a tough case.

[00:19:50] So every defense has to have – has to pick a jury that's not going to start from the foregone conclusion that he must have done something wrong if he's here.

[00:20:01] You have to be able to eliminate people that are predisposed to that because it's an uphill fight.

[00:20:08] But if you can start with keep your mind open, then your lawyering throughout is – and then your closing argument hopefully is the ribbon.

[00:20:17] But your lawyering throughout will draw them to either the lack of doubt if you're a prosecutor or the reasonable doubt if you're the defense lawyer.

[00:20:28] You mentioned this process takes place by like asking the prospective jurors questions.

[00:20:33] Are there any limits as to what sorts of questions you're permitted to ask?

[00:20:38] Yes.

[00:20:41] In sex offense cases or child abuse cases, child molestation cases, the courts that I practice in, they require that there be an individual voir dire with an individual questionnaire so that jurors don't have to get into embarrassing or painful topics in front of the group.

[00:21:01] So that's specifically – that's what jumps to my mind right away.

[00:21:04] And those happen in chambers then.

[00:21:06] So the judge will take the potential juror and the prosecutor and the defense lawyer into chambers, go through the questionnaires one by one by one,

[00:21:18] and make sure that none of the questions that would be embarrassing or tragic or triggering happen in the courtroom.

[00:21:26] Other than that, there's a great amount of leeway given to lawyers to ask questions of jurors, but it needs to stay on track.

[00:21:35] The lawyer must be able to link the questions to some value that that juror will or won't provide to the case.

[00:21:45] You can go too far afield and the judge is in charge and controls that and can say, you know, back to questions that are important here for selecting the juror and the juror's qualification.

[00:21:54] But there are constraints and limits, but they're very broad.

[00:21:59] In a smaller community, is it more difficult to find people who don't have any sort of connection to either the case itself or the parties involved?

[00:22:09] It can be, specifically if you have a very large witness list of law enforcement officers.

[00:22:16] So in a small community that has, you know, let's say there's a county of 50,000 people and you have a – if it's a traffic stop with some drugs on the scene,

[00:22:27] you got one police officer, maybe two police officers, and then passenger in the car and maybe the driver of the car.

[00:22:35] Or that's not – you're probably going to be able to select a jury very quickly that doesn't know anybody.

[00:22:42] But if you have a murder case or a higher profile case where there's a crime scene that's protected for a couple days or a day by law enforcement officers,

[00:22:51] so you get a bunch of police officers that respond, police officers that preserve the scene.

[00:22:57] You have another degree of detectives that are doing interrogations, multiple witnesses, let's say.

[00:23:04] Then it becomes more difficult because you create that Kevin Bacon six degrees of separation with all the more people.

[00:23:12] The standard isn't do I know somebody that was involved in the case.

[00:23:15] It's even if I know somebody that was involved in the case, can I put aside my feelings for that person and listen to the facts and the evidence?

[00:23:24] Am I so swayed by my knowledge of this person that I believe that they're going to be – I'm going to value their testimony, their perspective more than somebody else's?

[00:23:32] That can be a way to then eliminate the person if they have that strong of a leaning.

[00:23:40] It can be different, but you'd be surprised.

[00:23:43] Even in a smaller community like Bedford that has 15,000 people in its city limits and 50,000 people in the county,

[00:23:51] rarely do we run into a situation where we're like, oh, we might not get a jury because everybody knows Sheriff Day.

[00:23:58] They – Sheriff Day is a well-known man.

[00:24:01] Sheriffs by their very nature in Indiana are elected officials, so they've had campaign signs out,

[00:24:08] and they probably hands shook just about in every neighborhood to get the votes.

[00:24:12] But you'll still find that I really don't know him that well, and I can put aside what I do know about that person.

[00:24:18] So I don't find it to be so difficult.

[00:24:21] And then just as a logistical question, how long does Wadir typically take or does it vary based on the needs of the case?

[00:24:30] It varies on the needs of the case, and it varies on jurisdiction, even county to county.

[00:24:35] I have never done a jury trial in Marion County, Indiana, but I know several lawyers that have a lot, and they call it speed dating.

[00:24:43] The judge gets to constrain jury selection by time.

[00:24:49] So a less significant case, let's say a misdemeanor case or a low-level felony case,

[00:24:56] a judge can say, I'm going to give a total of 25 minutes for Wadir to each side.

[00:25:02] Use your time-wise. Go.

[00:25:04] Now, the jury rules say that a judge should allow for – generously allow for additional time if necessary and for good cause.

[00:25:16] But in a simple battery case or a low-level theft case, the issues are pretty straightforward.

[00:25:27] Lawyers should be able to address those issues quickly,

[00:25:30] boil it down to are we going to be able to pick a jury that can keep their mind open and then go with it.

[00:25:36] I like to have, and I've been blessed to practice in front of judges, that let us have our time.

[00:25:41] Let us flesh this out. Let us make the jurors comfortable.

[00:25:45] Because I think speed dating jurors makes the jurors uncomfortable too because there are many people who are coming into jury service are nervous.

[00:25:54] What am I going to be seeing? What am I going to be hearing?

[00:25:56] What's it going to feel like to have to think about passing judgment on a person?

[00:25:59] Or what's it going to feel like to have to face police and say they didn't do a good job?

[00:26:03] All of those things can be hard for a librarian or a clerk someplace that's under a subpoena to come into court to be a juror.

[00:26:14] And they're like, this is a big, important thing.

[00:26:17] I think Wadir can be an opportunity to welcome them to this adversarial process with some grace.

[00:26:26] Typically in Wadir, the prosecutor and the defense lawyer aren't going after each other hotly.

[00:26:32] There is some dating to it where we're courting the jurors to try to figure out who we want to date for the rest of the trial.

[00:26:41] So, you know, best foot forward.

[00:26:44] And, you know, even if we don't like the response of a juror, we're going to be super kind to that juror and throwing them out.

[00:26:50] You know, I mean, so there is that.

[00:26:54] But I prefer to have more time to work through the process.

[00:26:58] Sounds like it's The Bachelor, but very sad.

[00:27:02] So you're like courting the jurors.

[00:27:04] You're trying to build rapport with them.

[00:27:06] What sort of things are you trying to do to make that happen?

[00:27:09] Often it depends on the type of case.

[00:27:11] In a small rural red community in Indiana on a gun case, you know, I may start off talking these folks about guns and getting to know what their feelings are about guns and absolute Second Amendment right versus absolutely no guns.

[00:27:28] And as you get better at voir dire, you get better at letting them do the talking about it.

[00:27:34] And if you catch a juror that is answering the questions the way you want your jury to be thinking, you let that juror educate the jury.

[00:27:46] And then when your opposing party, whether it's a defense lawyer or a prosecutor, strikes that juror, they've filled the pool with the knowledge that you wanted it to come from them.

[00:28:00] And then you can always later with a new panel, you can say, as that one juror said, you know, what do you think about that?

[00:28:07] What do you think about that?

[00:28:08] And positively indoctrinate the jury with that.

[00:28:12] So asking them questions, ask them to go deeper on an issue.

[00:28:16] Tell me more about that are questions that I like to ask.

[00:28:20] And what do you think about this idea?

[00:28:23] You know, and let them get into it.

[00:28:25] And, you know, I very often am nervous before, you know, jury selection begins.

[00:28:33] Even though I like to compete and I love trying cases, I still get butterflies.

[00:28:39] And so I try to let them know right out the gate, this is a big deal and I'm nervous.

[00:28:43] I might stammer or stutter over words, forgive me.

[00:28:46] And so I try to take myself down to a level that they're able to appreciate my role and my task without thinking that I'm somebody who's, you know, gone to so much school and has so much experience in here.

[00:29:02] And so I try to definitely bring myself to a level that I'm not intimidating to them.

[00:29:09] So that's one that's kind of how I court.

[00:29:13] Do you ever experience, you know, jurors or prospective jurors rather who seem to be trying to get thrown out?

[00:29:20] Or is that a common thing or don't want to be there?

[00:29:23] And sort of how does that sort of play out typically?

[00:29:25] Sure. Usually it happens pretty quickly and during the judge's portion of voir dire where they're trying to find people who are disqualified.

[00:29:35] You'll start to identify people right out of the gate that don't want to be there.

[00:29:39] Body language tells a lot.

[00:29:40] I mean, huffing and puffing, people like tapping their watch.

[00:29:44] You would be surprised really how unhappy people are to come in for jury service.

[00:29:50] It's relatively easy to get off of jury service.

[00:29:55] Often it's a phone call a few days beforehand where you say, I have something going on and a judge will excuse you.

[00:30:02] But the day of when they come in and recognize that this is it's going to happen, it's a real deal.

[00:30:08] People are unhappy.

[00:30:10] Ways that you common ways that people really strive to get off of jurors is being on one side or the other of this fence.

[00:30:19] Can you pass judgment on somebody?

[00:30:21] You'll have people who have a religious proclivity of saying, I can't pass judgment on anybody.

[00:30:27] So I would not be fair to the prosecutor in this case because at the end of the day, it's for God alone, not for me to assign somebody's guilt or innocence.

[00:30:36] Almost always those folks are, if they're that married to that position, they're just wanting off of a jury.

[00:30:42] And then you get the other people that say, I believe if you've been arrested, you've done something wrong and I'm not going to, you know, you get, you get both ends of those.

[00:30:53] And so you have to weed through those folks quite a bit.

[00:30:56] They normally are very vocal and loud about it because they want out sooner than later, especially if they're on the second or third panel.

[00:31:03] They've heard from the they've.

[00:31:05] So they're like I said, there's a panel and then the puddle or the pond is still sitting out there and we're filling the panel with the pond.

[00:31:11] So as you go through rounds of strikes, people who are paying attention can say, oh, if I answer like number 12 did, 12 went home.

[00:31:21] So I'm going to take 12's approach and people that want off will do that.

[00:31:26] You'll see you'll watch them, you know, parrot back what somebody who got struck said.

[00:31:31] And you're like, OK, I didn't want to be here.

[00:31:33] Is there a flip side of that where some people seem too eager to get on the jury or is that not really as much of a problem?

[00:31:39] Yeah, there's a that happens, too.

[00:31:41] There's there's a group of lawyers that that I admire that I've always said that juries are very difficult to pick because sometimes you end up with people that weren't savvy enough to figure out how not to be on a jury.

[00:31:54] Or there were people that wanted to be on the jury so bad they got stuck on the jury.

[00:31:58] And neither one of those people are people that we really want to be picking to be on our jury.

[00:32:02] If you have somebody that's so interested and so intrigued and so wed to the position of wanting to be a juror, that's dangerous.

[00:32:10] I mean, they want to have that much control over the outcome of a case one way or the other.

[00:32:15] It's that's dangerous.

[00:32:20] And the latter group is harder to siphon through and they don't they don't throw up as many flags because they're going to be saying, I can be fair.

[00:32:30] I can I can listen.

[00:32:31] I can be open minded if they want to be on the jury.

[00:32:34] They know that, you know, they need to be able to sell themselves as somebody who should stay seated in that seat.

[00:32:40] So, you know, you're going to pick up on cues and red flags based upon things that they really can't shake themselves from because they don't know everything about the case yet.

[00:32:50] So if if it's a gun case, like, let's say, a felon in possession of a firearm case and they're, you know, Second Amendment proponents, you know, they're you're going to get you're going to get to that with a gun question.

[00:33:04] And they're not going to know exactly what the gun question is about.

[00:33:07] But they may come out and be like, I kind of I have one in my car right now and I'm an absolute gun owner.

[00:33:12] Well, the defense lawyer is going to be like, good.

[00:33:14] And the prosecutor is going to have to say, well, since you're a gun owner, you probably understand there's rules around guns.

[00:33:18] Tell us about that.

[00:33:19] No, I don't really think there should be.

[00:33:21] You should.

[00:33:21] Everybody should have them.

[00:33:22] OK, defense lawyer is going to want that.

[00:33:23] You know, that's that's largely how we would work through that.

[00:33:28] Of course, a final jury is selected by removing people and people can be removed for cause or as a result of a peremptory challenge.

[00:33:37] So what's the difference between removing someone for cause and removing them as a peremptory challenge?

[00:33:42] Yeah. So after the questions have been asked by the judge, the state and the defense lawyer, everybody kind of sits down and then the judge will have a strike sheet.

[00:33:54] So you have your panel, typically 12 people sitting in that that juror jury box from which you get to strike.

[00:34:02] You can move, as you said, move to strike them for either cause or use a peremptory challenge.

[00:34:08] So a peremptory challenge is a challenge that you can strike somebody for no reason or any reason at all.

[00:34:14] You're not supposed to be able to strike them for a racial bias or something like that.

[00:34:18] So there's there's a Batson challenge.

[00:34:20] That's a whole different.

[00:34:22] That's an that's an improper peremptory challenge.

[00:34:24] So we're going to we're going to stay with proper peremptory challenges.

[00:34:27] I didn't like the way that person looked at me.

[00:34:29] I didn't like their answer.

[00:34:31] I just got a bad gut feeling.

[00:34:33] I I'm never you know, somebody might say I'm never going to put a chef on, you know, somebody that works with recipes.

[00:34:40] I don't I'm you know, you have lots of different reasons you can use peremptories.

[00:34:43] You are limited to the number of peremptory challenges you can have in different jurisdictions.

[00:34:49] It's a different quantity of peremptory challenges.

[00:34:51] And some places it's different based upon whether this is a felony or a misdemeanor charge.

[00:34:56] But let's say you get 10 peremptory challenges.

[00:35:00] You kind of you hold peremptories.

[00:35:03] You need to have studied your jury pool based upon your the demographics.

[00:35:07] And then you need to be anticipating who's coming up if there's a strike, because you've got to know who you who you're worried about on in the jury.

[00:35:19] Jury pool.

[00:35:20] You need to know who you're worried about.

[00:35:22] And then if you're striking, how does that how do the how does your panel get fed from the people in the in the in the veneer?

[00:35:31] Cause strikes are very specific.

[00:35:35] They are contested and they are you are striking this person because there is a known.

[00:35:44] They've said something that makes it so that they would not be a fair juror.

[00:35:48] Indiana has in its jury rules specific grounds for cause, such as, you know, some form of disqualification that the judge asked that they didn't answer truthfully to.

[00:35:59] But you bring it you flesh it out into through your through selection.

[00:36:04] You flesh it out that they they don't live in that county anymore, that that you could strike them for cause that won't be contested too much.

[00:36:12] Another one is that they're going they're going to be unable to comprehend the evidence in some way, shape or form.

[00:36:17] They don't hear well.

[00:36:20] They've got an inability to you come up with a learning disability where they're not going to be able to do the math they need to do in a complex fraud fraud case.

[00:36:29] You know, something along those lines.

[00:36:30] They've formed or expressed an opinion as to the outcome of the case prior to coming in and they're married to it.

[00:36:37] That that's a for cause in a in a dealing resulting in death case that I tried.

[00:36:42] We had a juror that said it really wouldn't matter to that juror potential juror whether or not the state failed to prove that the drugs that the guy dealt were what killed the victim.

[00:36:57] OK, which is an essential element of the crime.

[00:37:00] The guy said it doesn't matter to any dealer any drugs.

[00:37:02] That's good enough for me and it will be good enough for me even if the judge instructs me that it takes more than that.

[00:37:07] I don't want drug dealers down here.

[00:37:09] I don't want drug dealers doing this guilty.

[00:37:12] Struck for cause because, you know, that's not the law.

[00:37:17] They got to be able to follow the law.

[00:37:19] So there's other I mean, there's there's a list of four cause, but it typically is is they're so biased in one way or another that they're not going to be able to render a fair or they're so distracted.

[00:37:29] You know, I've had I've had jurors that say nothing.

[00:37:33] The judge asked me about physical or mental disabilities rang true to me then.

[00:37:38] But now that we've been sitting here for two hours, I have to pee every 15 minutes.

[00:37:43] And if I don't, I don't have control over it.

[00:37:46] So it's going to be distraction that I'm going to have to raise my hand and we're going to be taking recesses every 15 minutes for me.

[00:37:52] A judge might say, you know.

[00:37:54] Ask some more questions, but if that's true, cause them off.

[00:37:57] You don't have to use a peremptory.

[00:37:58] You don't have to burn a peremptory for that.

[00:38:01] So those are typically it.

[00:38:03] You know, you might find out the defendant has a pending criminal case.

[00:38:06] You know, that's not one of the disqualifying characters, but it definitely is one that a prosecutor can say, yeah, I'm adverse to this person one courtroom over and they're going to be hearing my case here.

[00:38:18] That's not that's not right or fair.

[00:38:20] During the voir dire process, there are breaks that happen, lunch breaks and whatnot.

[00:38:24] If a witness or a defendant has a conversation with a panel member, you know, that could be grounds for strikes.

[00:38:30] So there are different rules, but it's it all comes down to fairness, prejudging ability to follow the court's instructions because the court.

[00:38:40] I understand you will be doing instructions and how all of that goes, but that's really the judge gets to lay the ground or ground rules for a trial.

[00:38:51] And the jurors have to swear under an oath that they will abide by those rules.

[00:38:56] If and one of the things I'm doing in in voir dire is finding out, is this juror going to be able to follow the rules?

[00:39:05] So prosecutors love in voir dire to say we want a fair trial.

[00:39:10] Everybody wants a fair trial.

[00:39:12] And one of my last trials, the prosecutor said that and we want to we want a jury that's going to be fair to the state.

[00:39:18] And when I got up for voir dire, I said, and that's absolutely wrong.

[00:39:22] State doesn't get a fair trial.

[00:39:24] You're going to be instructed from the judge that the state alone has the burden of proof and they have a burden of proof beyond a reasonable doubt that the defense doesn't have to present anything.

[00:39:34] Doesn't have to speak.

[00:39:35] Doesn't have to do anything.

[00:39:36] Doesn't have to cross examine anybody.

[00:39:37] It's the state's burden alone.

[00:39:39] This is an unfair trial by design.

[00:39:42] And then I explained to them why that this is, you know, part of our gut.

[00:39:45] We go into a government lesson.

[00:39:47] Everybody understand how you feel about that.

[00:39:48] Can you tell?

[00:39:50] And, you know, in voir dire, you know, your job as a juror is going to be testing the state's case.

[00:39:55] Can you tell the state that they failed their case?

[00:39:59] If they don't prove beyond a reasonable doubt the guilt of the client, can you tell the state they failed?

[00:40:04] Can you look the prosecutor in the face and say, I'm sorry, you failed.

[00:40:09] Hopefully I got a teacher on the jury panel and I can talk to them about how difficult it is to tell a student they failed, but you still have to do it.

[00:40:16] You know, and then you get to, you let that, let that juror sort of educate the other jurors on, you know, this can be a difficult task, but we're here to, the judge's instructions are going to tell them they're here to grade the state's case.

[00:40:31] You get a potential juror that says, sometimes people fail their test, pass fail test at the highest level.

[00:40:37] This isn't pass fail at an F.

[00:40:39] This is pass fail at an A, somewhere greater than clear and convincing evidence.

[00:40:44] And then you get each juror to tell you, look you in the face and say, I can tell that detective and that prosecutor that they didn't meet their burden.

[00:40:54] If they don't do it, I can do that.

[00:40:56] I promise you that.

[00:40:57] And it's a callback to closing argument.

[00:40:58] You can call that back.

[00:41:00] If they can't, if they're going to be like, no, I mean, it's got to be, you know, the burden of proof.

[00:41:06] The state has me, if he probably did it, that's good enough.

[00:41:09] I can get, and if they say that I can get them for cause.

[00:41:12] Or if the, if you're the state, if you're a prosecutor and the jury says, man, you got to prove it beyond all doubt, not by a reasonable doubt, all doubt.

[00:41:21] I got it before I'm going to be able to convict somebody of a crime.

[00:41:24] I got to know nobody.

[00:41:25] There's no other way it could have happened.

[00:41:26] Well, that's not the burden.

[00:41:27] Burden is beyond a reasonable doubt, not beyond all doubt.

[00:41:29] And so the state's going to be like, listen, that person, judge, that person is predisposed against the state.

[00:41:34] We got to get rid of them for cause, not peremptory.

[00:41:37] Judge might ask him a couple of cleanup questions.

[00:41:40] But so that's how cause and peremptories happen.

[00:41:43] Was that clear?

[00:41:44] Absolutely.

[00:41:45] One thing you mentioned that I thought was interesting was like improper use of preemptory and sort of how there can be like racial bias and whatnot with that.

[00:41:53] And I was just curious, like, how can that manifest itself?

[00:41:56] What are the rules around that?

[00:41:57] And how can that be uncovered?

[00:41:59] Because I imagine it can be subtle sometimes.

[00:42:03] And, you know, well, preemptory, you're supposed to just be allowed to do it.

[00:42:06] So, yeah, I'm curious about that.

[00:42:09] Yeah.

[00:42:09] So as I mentioned before, I believe it's Batson is the case that it's a Supreme Court case that talks about it's improper for the government to intentionally.

[00:42:25] There's no other thing that comes to my mind right now except say whitewash, which is it, which is it's it's intended to be a racial term, because if you're a person of color and you're being tried by a jury of your peers and all of your peers are getting eliminated peremptorily and it's because they're of color themselves, then that's that could be stacking the deck.

[00:42:52] And you hit on something that's very, very difficult.

[00:42:56] How do how does that get uncovered?

[00:42:59] Racial biases often aren't even intentional.

[00:43:04] Implicit, I think it's called implicit bias.

[00:43:07] I've taken a couple of different surveys to measure for it to help me measure what are my implicit biases.

[00:43:13] And it's often shocking, you know, growing up in an all white town in Indiana and 80s and 90s and trying to be open minded and going to university and doing all of these things.

[00:43:26] There's still implicit biases that you have to I have to combat.

[00:43:30] So how then in jury selection does it get fleshed out?

[00:43:36] It typically has to be egregious.

[00:43:38] I mean, in my experience in reading, it has to be, you know, there were 12 people put in the box, six were of color or, you know, of a minority class or of a particular demographic.

[00:43:53] That's a protected class.

[00:43:55] The state burnt all their strikes on getting those folks out right away because I don't believe and I've never experienced a prosecutor or a defense lawyer asking the straight up question.

[00:44:07] Does the way this person look matter to you and then and then run with it?

[00:44:12] But it's it's probably one of those things much like pornography is that, you know, when you see it and you need good need good lawyers and good judges to be sensitive to it, because honestly, good prosecutors, that's not how they want to win.

[00:44:27] And and and good defense lawyers are are interested in getting the best outcome and the fairest outcome for their client, but also are not going to be seeking to play that kind of a game, though the restriction isn't on the defense lawyer.

[00:44:45] I mean, a defense lawyer might have every reason to strike the most privileged people who are on the jury pool to protect his client to get the better group of peers.

[00:44:54] And I think it's I think it's really ignorant of me to say that that's not a problem that would still persist and still occur.

[00:45:00] I just think I think more of of my profession and the prosecutors in my profession than wanting to win that way.

[00:45:08] If that's if that's the way you got to get it done, you're you're you're slack and you're shameful and you should you should you should you should reap some of the benefit of that.

[00:45:19] And and but it takes good defense lawyers to say this is bad.

[00:45:22] This there's bats in happening here and preserve it for an appeal.

[00:45:25] Make make the make the objection to the court.

[00:45:28] Any judge worth their salt will will be like, I don't like how this is feeling and we don't need to try this case again.

[00:45:34] I mean, judges don't want to try cases twice.

[00:45:37] Their dockets are full enough.

[00:45:39] And if there's if there's bats and stuff going on, they know they're going to have to.

[00:45:43] What is the biggest mistake that you see attorneys make in what you're generally speaking?

[00:45:48] I think not listening.

[00:45:51] Jurors want to tell you whether they like you or not.

[00:45:54] Jurors want to tell you whether or not they I'm talking about the jurors that are ultimately fair, balanced and in the pocket for becoming a part of your panel.

[00:46:03] Now, they want you to know who they are as it relates to your case.

[00:46:09] They often don't want you to know who they are at all as who they are as people.

[00:46:13] You know, it's this is scary to be under a microscope.

[00:46:16] Often people don't want their sins of of thought to be exposed.

[00:46:21] And that happens in voir dire.

[00:46:22] So there's there's some trepidation that they have with even even talking.

[00:46:26] But if you listen, it's it's more about listening.

[00:46:29] It's more about using that time to build some rapport, credibility and begin to touch on your theme and theory of your case with them.

[00:46:42] But you're not going to know whether or not your theme and theory of your case is going to have any sort of purchase with them unless you're listening to them.

[00:46:52] Talk it back.

[00:46:52] My goal is to have the prospective jury panel telling me my theme and theory without me having to tell them so that when they start hearing it from me in course of the opening, in course of the questioning, in course of cross-examination, in course of my closing argument, you know, I'm almost open to them thinking they came up with it.

[00:47:14] I think the biggest mistake lawyers make in voir dire is either trying to jam it down the veneer, jam it down their throat or just missing what the person is saying to them.

[00:47:29] You know, let's say you got you have a science case and if you're the state, you don't want scientists on board.

[00:47:36] And you got somebody on there that says, oh, you know, one of my biggest hobbies is, you know, making beer, brewing beer to if you're not listening and you just hear beer, you might think, oh, this person likes to drink beer and watch football games.

[00:47:51] Brewing beer is scientific.

[00:47:53] I mean, there's there's equations and stuff that go into that.

[00:47:55] And and that's a hobby that a lot of people engage in.

[00:47:58] And so if you miss that, you don't zero in on that.

[00:48:01] Oh, is this a science person or not?

[00:48:03] You know, you might you might keep somebody on that ultimately would be bad for your case.

[00:48:08] Looking back on your career, have you had any unusual or strange experiences during voir dire that stick out?

[00:48:13] Not so much as during voir dire that stick out during voir dire.

[00:48:19] I've had cases that the outcome happens and I'm wondering how in the world did the outcome happen with that jury, given how voir dire went.

[00:48:29] And then you find out that the right question didn't get asked or the person withheld information from the parties or the lawyers when they were asking it.

[00:48:38] And speaking specifically to a case that I prosecuted, it was an attempted murder case was the lead the lead count.

[00:48:47] And then there were multiple counts of shooting into a dwelling, criminal recklessness, fell in possession of firearm.

[00:48:54] It was a very long trial during jury selection.

[00:48:57] I wanted to know if there was anybody biased against the police.

[00:49:01] I was a prosecutor at the time.

[00:49:03] Everybody told me there weren't biased about the police, hadn't had any negative experiences with the police.

[00:49:07] I went through each one.

[00:49:09] I remember looking each one of them in the eye saying that they didn't have a bias or prejudice against the police.

[00:49:14] And this is one of the clearest cut attempted murder cases on a police officer that I could imagine.

[00:49:23] Uncontroverted evidence that the defendant came out of a doorway, had a shotgun.

[00:49:28] The policeman was behind a car.

[00:49:29] When he peeked out from behind the car, what he saw was the guy looking down the barrel of his shotgun.

[00:49:35] And then bang, the shotgun goes off.

[00:49:38] Had it had buckshot in it, that policeman would have been dead.

[00:49:41] But it had a slug in it.

[00:49:42] And the slug whiffed by the police officer's head.

[00:49:46] The wadding, the packing of the shotgun hit the policeman in the mouth and busted his lips.

[00:49:53] That's how close to death this was.

[00:49:55] And then there were tracking shots.

[00:49:58] As the policeman retreated, the guy kept firing at him.

[00:50:01] So in my head to this day, there was adequate evidence to support an intention to kill that policeman.

[00:50:10] That was unsuccessful.

[00:50:11] So it was an attempt to murder.

[00:50:13] I thought we were good to go.

[00:50:15] And there was a not guilty verdict on count one.

[00:50:19] Everything else guilty, including habitual felon.

[00:50:22] But, you know, not guilty on count one.

[00:50:24] So we go back and we talk to the jurors.

[00:50:26] And one of the alternate jurors in that case was just festering with anger.

[00:50:33] Because one juror had held out on that.

[00:50:38] And this alternate would have voted guilty and there would have been guilty on that.

[00:50:42] And so I asked the juror, the alternate pointed to who the juror was.

[00:50:47] And I said, tell me more about what the problem with count one was.

[00:50:52] Oh, you know, this specific one police officer, not the one that had been shot at, always picks on my son.

[00:50:57] And I don't trust anything they say.

[00:51:00] Is there any recourse when jurors lie like that?

[00:51:04] I mean.

[00:51:05] Yes and no.

[00:51:07] So when it's to the benefit of the defendant, there's no recourse.

[00:51:12] The state doesn't get the recourse.

[00:51:14] When it's to the detriment of the defendant, there's a process of going through and analyzing whether or not the jury was tainted, tampered with.

[00:51:22] And addressing it that way, thinking of like Alec Murdoch and his case.

[00:51:26] And whether – I don't know where that's at at this point.

[00:51:29] But I know at one point in time, there was a clerk of courts that may have – or court reporter or somebody that may have been talking to jurors during cigarette breaks and making – and so they were – I believe they were going to challenge whether or not the jury had been messed with sufficiently.

[00:51:44] So there can be a remedy that way.

[00:51:48] But ultimately, in Indiana, where you would see it happen would be that that information would come out.

[00:51:55] If the defendant was negatively impacted, then there would be an ineffective assistance.

[00:52:01] A counsel claim made that the lawyer didn't do the right steps to find that juror.

[00:52:05] It's really – the voir dire is supposed to flesh that out.

[00:52:09] And so if you don't, it's on the lawyer in Indiana.

[00:52:12] But juror misconduct is a whole other level of appeal process that would have to happen.

[00:52:19] We want to thank Tim so much for talking with us.

[00:52:22] It's always a pleasure.

[00:52:23] And we really appreciate him sharing his insights with us.

[00:52:28] Thanks so much for listening to The Murder Sheet.

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[00:54:00] This is a wonderful company that's all about making the finer things in life really accessible for everybody.

[00:54:06] That means Italian leather handbags.

[00:54:09] That means gold jewelry and items, but it especially means their wonderful line of Mongolian cashmere products.

[00:54:18] So sweaters, things like that.

[00:54:20] And not just as you so astutely noted, not just that, there are other things they offer.

[00:54:27] For, like, you know, for many years, I thought, well, wouldn't it be fun to dress like Colonel Hogan from Hogan's Heroes?

[00:54:34] He always wears this bomber jacket.

[00:54:35] But you go to these stores, you go to these online marketplaces, and these bomber jackets, ridiculously high price, because everybody wants to look like Colonel Hogan.

[00:54:44] But Quince offers that at an affordable price.

[00:54:49] Yeah, and they even threw in some quirky side characters to help you dig holes in the yard, which has frankly been pretty inconvenient for our neighbors and me.

[00:54:58] But I'm glad you're having a good time.

[00:55:02] So that was your goal, and I'm curious, because we both got to select some Quince products to purchase, and your goal was...

[00:55:10] And you're not, I'm not saying that if you buy this great jacket, you're going to look like a character from a TV show that maybe you haven't even watched.

[00:55:19] You're just going to look good, because he was a charming character.

[00:55:21] He was a charming character, and he had a good fashion sense.

[00:55:23] So, I mean, I think you, I'm just fascinated by the way your mind works, I guess.

[00:55:29] But no, I think you look really cute in that bomber jacket.

[00:55:33] I really like it on you.

[00:55:34] I was proud of you for getting it, because I think, you know, you kind of, you have your kind of Kevin uniform, and this is a bit different.

[00:55:40] But I think it was so nice, and it's such a good price that you kind of were like, I can't say no to that one.

[00:55:45] So what TV characters were you trying to emulate with your cashmere sweater?

[00:55:49] None.

[00:55:50] I wasn't trying to emulate anyone.

[00:55:51] But I was, I really like sweaters, and so I consider myself, I wouldn't say I'm a sweater connoisseur.

[00:55:58] You know, I've never really had like a cashmere sweater.

[00:56:01] I mean, that's something I associate with being like very luxurious, very fancy.

[00:56:04] So I got two of their sweaters, and they are so nice.

[00:56:07] We actually, I wore one when we went to get dinner with our friends the other night.

[00:56:11] We, I've kind of worn it a lot ever since.

[00:56:14] They're both really cute.

[00:56:15] And also, you know, one thing with sweaters is sometimes if you're just wearing them, and you're not wearing like an undershirt or something, they can kind of get scratchy.

[00:56:22] These ones are so soft.

[00:56:24] They feel so good on your skin.

[00:56:25] There's like no issues with that.

[00:56:27] And they're just very, they just feel a little bit like quiet luxury, a little fancy.

[00:56:33] And that's really nice.

[00:56:34] And I think they, for me, they go with a lot of different things in my wardrobe.

[00:56:38] So it's like, I appreciate that they can kind of be like a bit of a staple there for me.

[00:56:43] I'm not, it's like, you know, like everyone, everyone's had a thing where they're like, I'm going to wear this all the time.

[00:56:48] And then you don't, and like, it doesn't go with anything.

[00:56:50] So like, what are you doing?

[00:56:51] But these are the opposite of that.

[00:56:52] They kind of go with everything.

[00:56:53] For Murder Sheet listeners, there is a very special deal.

[00:56:56] Gift luxury this holiday season without the luxury price tag.

[00:57:00] Go to quince.com slash msheet for 365 day returns plus free shipping on your order.

[00:57:06] That's Q-U-I-N-C-E dot com slash msheet to get free shipping and 365 day returns.

[00:57:14] Quince.com slash msheet.

[00:57:16] That's a great deal.

[00:57:17] It really is.