Saturday, June 15, 2013
I write today to explain another jury selection rule that is important for a lawyer to consider when deciding whether to exercise a peremptory challenge.
The order in which the PJs (prospective jurors) were called determines the order in which the PJ’s fill in as PJs are excused for cause and peremptory challenge.
For example, let us suppose that we have 10 PJs numbered 1-10.
Let us also suppose that PJs 1, 5, 6, and 9 are excused either for cause or by peremptory challenge.
The new order is 2, 3, 4, 7, 8 and 10.
If we have a jury of 4 with 1 alternate, the jury will be composed of former PJs 2, 3, 4 and 7. They will now be known as jurors 1, 2, 3 and 4.
Former PJ 8 will become the alternate and PJ 10 will be excused.
Therefore, the order in which the PJs have been called is important. They were called in this order. The strike-throughs have been excused.
Monday 4 (B12, B29,
Tuesday 10 (B7, B35, B37, B51, B55,
B65, B86, E6, E40, E54)
Wednesday 10 (E73, M75, R39, B61, B72, E22,
B87, E7, E13, E28)
Thursday 10 (
E50, E75, E81, K80, K95, N18, B34, B67, P67, G14)
Friday 7 (G29, G47, G63, G66, G81,
We now have 29 PJs passed for cause on the issues of hardship and pretrial publicity. This is the new order after removing the excused PJs:
B-12 F 40s-50s White
B-29 F 40s Black
B-76 F 50s-60s White
B-7 M 40s-50s White
B-35 M 40s-50s Black
B-37 F 50s White
B-51 F 60s-70s White
B-55 F 20s E. Indian
B-86 F 50s White
E-6 F 20s-30s White
E-40 F 50s-60s White
E-54 M 60s-70s White
E-73 F 60s White
M-75 F 30s Black
B-61 F 20s White
B-72 M 20s White/Bi-racial
E-22 F 50-60 Black
E-13 F 20s White
E-28 F 50s-60s White
K-80 F 40s-50s White
K-95 F 40s-50s White
P-67 M 40s-50 Hispanic
G-14 F 40s-50s White
G-29 F 30s Black
G-47 M 20s White
G-63 M 20s Mixed
G-66 F 50s White
G-81 M 30s-40s Black
H-6 M 30s-40s White
If the 6-person jury and 4 alternates were to be selected from this group, the jury would be composed of:
B12, B29, B76, B7, B35 and B37.
The four alternates would be:
B51, B55, B86 and E6.
The rest of the PJs would be excused:
We are still a long way from exercising peremptory challenges because Judge Nelson wants to create a pool of 40 PJs passed for cause on the issues of hardship and pretrial publicity. She has 17 to go after 5 days of individual voir dire.
When she gets to 40, she will bring all 40 together in the original order in which they were called and the lawyers will question them one at a time on other subjects asserting challenges for cause when they think they have established a proper basis to support it.
Examples of other subjects are, whether a PJ has ever been a victim of a violent crime or knows someone who has been, whether they are employed in law enforcement or know someone who is, whether they know any of the witnesses to be called during the trial. There are many other subjects, obviously.
Voir dire will reduce the group of 40 to some lesser number, hopefully not below 30, because at least 30 are needed to select 6 jurors and 4 alternates, assuming both sides use their full complement of 10 peremptories each, 6 for the jury and 4 for the alternates. (30 – 20 = 10)
When the lawyers begin to exercise their peremptories, they will be focusing on the first 6 in the order in which the PJs are then aligned. The 6 will be seated in the jury box. As 1 of the 6 is excused, he or she will be replaced by the PJ in the 7th position. When the next one is excused, and it could be the 7th PJ that moved into the box, he or she will be replaced by the PJ in the 8th position and so on until each side accepts the jury or uses its full complement of 6 peremptories.
The selection of alternates will proceed in the same fashion beginning with the first alternate and proceeding to the second, etc.
Key Point to Remember: A lawyer must know the order in which the PJs are advancing toward a seat on the jury when deciding whether to use a peremptory challenge. You don’t want to use your last challenge only to have someone worse replace the PJ you just eliminated.
Another Key Point to Remember: Jury selection is not about selecting who you want on the jury. It is about selecting who you do not want. In tomorrow’s post I will discuss the classification system that I used to decide who I did not want on a jury.
UPDATE: This article has been updated with information obtained from the Orlando Sentinel regarding the PJs who have been passed into the next round of questioning.
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