THE LAW OF JURY SELECTION Presented by Ted A. Donner (With Thanks to Hon. Ron Sutter and Hon. Lynn M. Egan)

I. INTRODUCTION

II. IMPORTANCE OF COURT’S PERSPECTIVE

COURT DISCRETION “[T]he manner and scope of the voir dire examination lies within the discretion of the trial court.” - People v. Metcalfe, 202 Ill.2d 544 (2002).

JUROR PRIVACY “While the parties have attorneys to champion their rights, the court must protect the Constitutional privacy rights of the prospective juror.” - People v. James, 304 Ill.App.3d 52 (2nd Dist. 1999)

EXPENSE OF JURY TRIALS Chairman Cronin’s Proposed Financial Plan for DuPage County in 2015 includes $345,000.00 to pay for juror fees and $28,000 to cover food and beverage expenses for jurors. It is based on an expectation that the status quo will remain much the same from last year. 12,500 prospective jurors are expected to report for jury duty but just 100 cases are expected to proceed to trial by jury. That means $3,450.00 per trial to cover juror fees, food and beverage – -- but that’s before the juror pay increase contemplated by Senate Bill 3075.

HARDSHIP

III. EXAMINING PROSPECTIVE JURORS

ATTORNEY-CONDUCTED VOIR DIRE “The court: -”[M]ay permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, and -”[S]hall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages. -”[S]hall acquaint prospective jurors with the general duties and responsibilities of jurors [though the questions ‘shall not directly or indirectly concern matters of law or instructions’]”. -Ill. Sup. Ct. Rule 234.

ATTORNEY-CONDUCTED VOIR DIRE “With ‘shall’ replacing ‘may,’ [Rule 234] now imposes a mandatory obligation upon trial courts…. [to consider questions submitted by counsel]…. We are not prepared to say, however, that it is impossible to conceive of a case in which the court could determine, based on the nature of the charge, the complexity of the case, and the length of the court's examination, that no attorney questioning would be necessary.” - People v. Garstecki, 234 Ill.2d 430, 917 N.E.2d 465 (2009)

HOW MUCH QUESTIONING IS NECESSARY? “A trial judge has broad discretion in limiting the voir dire of potential jurors, but this discretion is subject to the parties' right to an impartial jury…. To protect this right, a trial court should permit a reasonably extensive examination of prospective jurors so that the parties have a basis for an intelligent exercise of the right to challenge….” -Art Press v. Western Printing, 791 F.2d 616 (7th Cir. 1986)

HOW MUCH QUESTIONING IS NECESSARY? “The… trial court erred because the defendant was denied an informed and intelligent basis on which to assert challenges for cause or to exercise peremptory challenges…” -People v. Furdge, 332 Ill.App.3d 1019 (1st Dist. 2002).

CHALLENGES FOR CAUSE “It shall be the duty of the court to discharge from the panel all jurors who do not possess the qualifications provided in this Act, as soon as the fact is discovered….” -705 ILCS 305/14

CHALLENGES FOR CAUSE “We decline to impose a duty upon a trial court to sua sponte excuse a juror for cause in the absence of a defendant's challenge for cause or exercise of a peremptory challenge.” -People v. Metcalfe, 202 Ill.2d 544 (2002).

BIAS THAT CAN’T BE “SET ASIDE” [F]ixed opinions [a juror may have] which would interfere with [that juror’s] fairly judging [the] evidence on [its] merits. State v. Gillispie, 2012 WL 3030862 (W. Va. 2012) “The effect [a juror’s] conduct may have… on the other jurors' ability to deliberate impartially.” U.S. v. Machi, 811 F.2d 991 (7th Cir. 1987) “[B]iases that would interfere with [a juror’s] ability to follow the law -State v. O'Brien, 377 N.J.Super. 389, 873 A.2d 554 (N.J. Super. A.D. 2004)

PEREMPTORY CHALLENGES “Each side shall be entitled to 5 peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed 3, on account of each additional party on the side having the greatest number of parties. Each side shall be allowed an equal number of peremptory challenges.” -735 ILCS 5/2-1106(a).

PEREMPTORY CHALLENGES “All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce patterns of historical discrimination.” -JEB v. Alabama, 511 U.S. 127 (1994). “[A] trial judge may [or may not] choose to disbelieve a silly or superstitious reason.” -Purkett v. Elementary, 514 U.S. 765 (1995).

PEREMPTORY CHALLENGES ““[F]ailure to exhaust [one’s] peremptory challenges constitutes a waiver of any claim that a juror should have been stricken for cause and precludes any complaint [on appeal] that the juror was improperly seated.” - People v. Cedeno, 263 Ill.App.3d 257 (2nd Dist. 1994).

IV. JURY SELECTION TECHNIQUES

QUESTIONS: STAGES SUPPLEMENTAL JUROR QUESTIONNAIRE OR SHOW OF HANDS OPEN-ENDING “DISCOVERY QUESTIONS” “REHABILITATION” OR “DESELECTION” QUESTIONING CHALLENGES FOR CAUSE/PEREMPTORY CHALLENGES

QUESTIONS: SAMPLE #1 One prospective juror explains that he teaches classes in accounting at COD. You don’t yet know anything more about this juror but the case is going to involve some complicated number-crunching. What’s the best follow-up question from among these four choices? □ Would you please tell us more about that? □ Is it fair to say that you consider yourself an expert in accounting? □ That’s not something that would interfere with your ability to be fair and impartial as a member of the jury, is it? □ None of the above.

QUESTIONS: SAMPLE #2 A prospective juror in a contract case says that he was recently fired under “ugly circumstances” from the same company your client is now suing. What’s the best follow-up question from these four? □ Please tell us more about that? □ Your Honor, in fairness to everyone here, could we continue this voir dire outside the hearing of the other jurors? □ But it’s fair to say you could set that aside and that you’d fairly decide this case without regard to that experience, correct? □ None of the above.

QUESTIONS: SAMPLE #3 You notice one prospective juror (Juror 8) is vigorously shaking her head “no” and grumbling under her breath while she listens to another juror, a man sitting in the row directly in front of her (Juror 3), answer your questions about the criminal justice system. What’s the best question to ask next? □ I’m sorry, Juror 3, but I was distracted by one of the other jurors, could you repeat what you just said? □ Juror 8, what do you think about what Juror 3 was just saying? □ Mom? What are you doing here? □ None of the above.

QUESTIONS: SAMPLE #4 A prospective juror in a criminal case you’re defending points at your client (who is of a different race than the juror) and says she thinks it’s “high time we got those people out of this community altogether.” What’s the best follow-up question? □ But you could still fairly decide this case, couldn’t you? □ You seem angry. Did something happen? □ So, it’s true, isn’t it, that you harbor an insidious bias against my client and will be unable to fairly serve on this jury because you’re a totally unreasonable human being who is simply incapable of fairly weighing the evidence or applying the law as the judge instructs? □ None of the above.

QUESTIONS: SAMPLE #5 One prospective juror says he doesn’t think that injured people get nearly enough compensation for the damages they suffer in automobile accidents. You represent the plaintiff in this tort action. What’s the best follow-up from among these four choices? □ So, is it fair to say that you agree with the fundamental principles of our Constitutional system which allow juries to make such determinations on their own, without restriction by legislative or judicial fiat, as is their obligation under the Seventh Amendment, and that you agree that this fundamental right carries with it a moral obligation to provide the victims of other’s negligence with reasonable compensation for injuries suffered which should include an element of compensation for the pain and suffering such victims go through, an element necessarily more valuable than let’s say, a Picasso painting, since this is human life we’re talking about after all, such that an award of compensatory damages in excess of 20-30 times the medical bills in this case, wouldn’t necessarily be excessive? You’d agree that’s fair to say? □ No further questions of this juror, your honor. □ I take it you just moved to DuPage County? □ None of the above.

THE ART OF JURY SELECTION Presented by Hon. Ronald D. Sutter and Ted A. Donner With Thanks to Hon. Lynn M. Egan