Jury Selection - Word Choice Matters

Many times we go into jury selection thinking that it is just a conversation. Because of this we sometimes do not spend enough time thinking about what words we will use. After all, we have been having conversations with each other since we could first speak.

While at a broad level this is true, jury selection is more than just a conversation. It is a conversation with very specific goals under time constraints and in a high pressure environment. Because of this it is important to spend time thinking about not just what we want to talk about with the jury, but also how we are going to talk about it. Walking into a jury selection thinking that we are just going to talk about things is like walking into the ring for a boxing match thinking we are just going to fight and putting no thought or preparation on technique.

Not Thinking About Word Choice Can Hurt You

It may not sound like a big deal, but not carefully selecting the words you use in jury selection can hurt you and most importantly--your client. By way of example here is something that probably everyone who has selected a criminal jury has asked:

Q: Mr. Jones, do you need to hear from my client in order to return a verdict in this case?

A: No. I won't need to. That's his right, if he doesn't testify I have no problem with that.

That's a perfectly reasonable answer to that question and on its face the answer even suggests that Mr. Jones' verdict will not be negatively affected if your client does not testify. But is that really what Mr. Jones is saying? The way that question is posed Mr. Jones could be thinking the following:

1. I won't need to hear from him to return a verdict. If he wants to exercise his right not to testify that's his call, I'd have no problem finding him guilty.
2. I don't need to hear from him in order to return a verdict. It's definitely going to weigh in my mind when I'm trying to figure out whether he is guilty, though.
3. I don't need to hear from him to return a verdict, but if he doesn't tell me that what you're saying happened is true I'm not going to believe a word you're saying.

None of that is good for the defense. But the good news is that you can expose a juror like Mr. Jones if you crafted your question better. You could ask "Do you need to hear from my client to be able to return a verdict of not guilty?" "If you do not hear from him are you going to be thinking that he is guilty?" "If you do not hear from him are you going to think that the reason he chose not to testify is because what the government is saying happened is true?"

These questions are tighter and will get you closer to figuring out who is who in the jury box.

Subconscious Effect

Words also work on the subconscious. Different words and phrases trigger different feelings in people. One such example is the difference between "can you presume" and "do you believe" in the context of a criminal voir dire. If you're like me then you've probably stood before a jury and asked "Mr. Jones can you presume that my client is innocent?" This comes directly from the jury instructions in many jurisdictions which read "You must presume or believe that the Defendant is innocent." The word choice in this question is problematic.

Can you?

The words can you are problematic because it puts the person in the realm of possibility and not reality. Can you run 10 miles every day? Sure, with the proper training, desire, and drive you could. Most people could. Now think about this, do you run 10 miles every day? That answer is probably hell no for most of us. When you use can you you take the person to the word of possibility, and in the world of possibility anything is possible. But the truth is that you are not interested in whether the juror could presume that your client is innocent, what you want to know is if they do believe him to be innocent.

Presume

The second problem with that question is the word presume. When you have a choice between presume and believe, presume is weak, presume is high level thought. Believe is strong, believe goes right to the core of a person. What you believe in as a person is what makes you who you are. If you keep asking people whether they can presume your client innocent you'll find yourself in the realm of philosophy very shortly. The problem is that you won't know it because most jurors will tell you that they can do what you are asking them. Whether they actually believe that your client is innocent or not is another story.

Do you believe?

I don't really care whether a juror can under the right circumstances presume that my client is innocent. What I care about is whether they believe it right from the get go. Do you believe that my client is innocent? That's the kind of straight forward, direct question that evokes useful responses from jurors. That's the difference between could I run ten miles and do I run ten miles. It plays out in one of three ways usually:

First Scenario

Q:My client has been charged with trying to murder two people, do you believe that he is innocent?

A:I can't really say whether he is innocent or not. I haven't heard the evidence. I don't know.

Q:So if I understand you correctly, at this point you cannot believe that he is innocent because you have not heard any evidence?

Second Scenario

Q:My client has been charged with trying to murder two people, do you believe that he is innocent?

A:No. If he has been charged with two counts of attempted murder to me that means he must have done something.

Third Scenario

Q:My client has been charged with trying to murder two people, do you believe that he is innocent?

A:Yes, anybody could be accused of anything.

The first and second scenarios are cause challenges in most places. The third scenario gives you a good idea as to what the juror actually believes, not as to what they could presume. (Or at least what the juror is saying he or she believes, whether he or she is telling the truth is a whole other matter for another day.)

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