Preparing for a trial can be one of the most tedious and frustrating aspects of criminal law. The prosecutor and defense counsel both have an agenda. The prosecutor’s goal should be the protection of the community. The criminal defense lawyer’s plan should be to preserve the constitutional rights of his or her client and obtain the best possible outcome. This is in a perfect world, but as anybody that has ever set foot in a courtroom will tell you, criminal defense is far from perfect. There are biases that come into play, probation officers with a different view on a case that a prosecutor, defense counsel or judge may have, the judge may have their own “hot spots” which means certain charges where they lose objectivity and at the end of the day, the words of a prosecutor that I have a great deal of respect for ring true: “A trial only happens because both sides failed to reach a resolution.” When this happens, the first thing that we have to prepare for is jury selection, and that leads us to the concept of Voir Dire.
If we look up the term Voir Dire in Black’s Law Dictionary, is French “to see to speak,” the questioning of prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (knowledge of the facts; acquaintanceship with parties, witnesses or attorneys; occupation which might lead to bias; prejudice against the death penalty; or previous experiences such as having been sued in a similar case). One of the unspoken purposes of the voir dire is for the attorneys to get a feel for the personalities and possible views of the people on the jury panel. In English, this means that as counselors we need to try to gauge an understanding of who may serve on the potential jury, what we should be looking for when making selections. The concept varies from court to court in Michigan, and jury questionnaires help make these choices.
A jury questionnaire is a series of questions that the potential jury pool fills out and allow both the prosecutor and the defense to view. The point of this is for the attorneys to gauge the preferences and biases of the jurors. The problem with this is that each county, and for that matter, each judge, has a different view on the availability of these questions. In Caro, Michigan, when practicing in Circuit Court before Judge Amy Gierhart, the attorney does not obtain the issues under the day of trial. In Wayne County, a Judge like Catherine Heise is exceptionally fair and open-minded, but that county is so busy even the prosecutor may never get to look into the written statements from potential jurors. In Ingham County, if you have a judge that likes jury trials, you may obtain the questions weeks in advance which allows the attorney to run social media searches on the pool. When the attorney is lucky enough to gain this kind of edge, they need to take advantage of it.
Challenges to potential jurors come in two flavors: A challenge for cause. A challenge for cause is a challenge because there is a clear bias on behalf of the juror. Things such as racism, bigotry, family members involved in the case, friendships with the witnesses and anything that could affect the objectivity of the jurors could lead to a challenge for cause. In Michigan, there is no limitation to challenges for cause but making such a challenge is at the discretion of the judge that is in charge of the trial. The second type of challenge is the “Peremptory Challenge” which is described in Michigan Legislature Section 768.13.
The Peremptory Challenge
A peremptory challenge is defined in Wex’s Law Dictionary as “One of a limited number of special jury challenges given to each party before trial. A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation – unless the opposing party presents a prima facie argument that this challenge was used to discriminate from race, ethnicity, or sex.”
In Michigan, both the prosecutor and the defense counsel are entitled to some peremptory challenges, and in a capital case, the standard is to have 12 challenges each. (A capital case is one where the defendant is facing life in prison should they be convicted). If there are multiple defendants in the said case, that number changes. The literal text of the statute states:
(1) A person who is being tried alone for an offense punishable by death or imprisonment for life shall be allowed to challenge peremptorily 12 of the persons drawn to serve as jurors. In a case punishable by death or imprisonment for life that involves 2 or more defendants, a defendant shall be allowed the following number of peremptory challenges:
(a) Two defendants – 10 each.
(b) Three defendants – 9 each.
(c) Four defendants – 8 each.
(d) Five or more defendants – 7 each.
In a non-capital case, according to Michigan Legislature Section 768.12, both the prosecutor and the criminal defendant are entitled to 5 peremptory challenges each. This makes the selection much more difficult even though the charge is not as high as the capital offense.
With this outline in place, the next thing that we will have to discuss is a series of questions that the criminal attorney should ask the prospective jury. These questions will help the lawyer understand the personality of the potential juror. In a future article, a sample of these questions will be provided.
William Amadeo is a Senior Associate for Grabel and Associates and a partner at Ann Arbor Legal PLLC in Ann Arbor, Michigan. Amadeo is licensed in Michigan, New Jersey, and the Federal Court system. In addition to work in criminal defense, Amadeo is a staff writer for “The Chronicle News,” a member of the Michigan Animal Legal Defense Fund and the owner of BAT Tutoring in Lansing, Michigan.