The Details of Jury Selection

A few weeks ago, I mentioned that one of my recent trials ended in a mistrial after we discovered that one of the jurors had deceived us during jury selection. What I didn’t mention was how my opponent did an exceptional job of establishing a record to show how his peremptory strikes would have been differently exercised had the deception been uncovered during jury selection.

At one point, as we were debating whether or not the motion for mistrial should be granted, the judge asked him, “How have you been prejudiced?”

Here’s how he responded:

“I would have exercised my peremptory strikes differently, your Honor, and seated a different panel. Judge, the juror who lied to us was #11 in the jury pool. By the time we reached her, our jury was comprised of jurors # 1 – 2 – 4 – 6 – 11 and 13. At that point, I had used three of my peremptory strikes and had three more strikes available. If we had discovered the truth about her earlier, I would have asked that she be excused for cause, or would have used my fourth peremptory strike to excuse her. Instead, I used my fourth peremptory strike on juror #14. The next time we reached a panel, it was comprised of jurors # 1 – 4 – 6 – 11 – 13 and 16. If #11 had been properly stricken from the jury, the composition of the panel would have been different. Some of juror #11’s life experiences balanced out the life experiences of juror #1, but without #11 on the panel, I think the jury would have favored the plaintiff, and I would have back-stricken juror #1. Additionally, I exercised a back-strike against juror #6. If juror #11 had been properly stricken, I would not have exercised that strike. Instead, based on the composition of the panel, I would have accepted juror #6 so I could save one of my peremptory challenges to strike juror #21.”

I have to admit, I was impressed. At every point during the selection process, he could outline exactly which jurors had been seated, how many strikes each side had exercised, which order they’d been exercised in, and could tell us the exact composition of the jury pool. Up until this point, the only system I’d ever used for memorializing the jury selection process was a rudimentary model that cataloged which jurors had been stricken and which side had exercised the strikes. Here’s what my typical jury selection sheet looked like:

Seat #1
DEFENSE STRIKE
Seat #2
PLAINTIFF STRIKE
Seat #3
SEATED AS JUROR #1
Seat #4
SEATED AS JUROR #2
Seat #5
CAUSE STRIKE
Seat #6
SEATED AS JUROR #3

Actually, I used a shorthand method to document my strikes, so a typical jury selection sheet looked more like this:

Seat #1
?
Seat #2
?
Seat #3
Seat #4
Seat #5
¢
Seat #6

It was an easy system that told me at a glance exactly who had been stricken and which side had struck the potential juror, but it didn’t give me much more information than that. I had no way of capturing when the jurors were stricken, which number strike had been used, or what the composition of the jury pool looked like. But if you want to create a perfect appellate record, that’s the type of information you’ll need.

After we finished, I asked if he’d be willing to share his jury selection system with me, and he said he would, and now I can pass it along to you. Here’s how his system works:

For our example, let’s assume you’re working with a panel of 24 jurors, each side has six peremptory strikes, and your jury is comprised of six jurors.

The first thing you’ll do is write down the numbers 1-24 on your legal pad, leaving enough space between each line to write a quick note or two:

Juror #1:
Juror #2:
Juror #3:
Juror #4:
Juror #5:
Juror #6:
etc…

As you each juror is stricken, you’re going to write down who struck them, and which peremptory strike they exercised:

Juror #1:
Juror #2:
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
etc…

Once you finally have six jurors seated, draw a line across the page and list the makeup of the jury:

Juror #1:
Juror #2:
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 – 2 – 4 – 6 – 11 – 13
—————————————————————–

Once you have enough jurors seated to comprise a jury, the judge will ask if either side wishes to “back-strike” any jurors. Once either side back-strikes a juror, the composition of the jury changes. For example, let’s say that the plaintiff back-strikes juror #2. Here’s how your notes would look as the jury selection continues:

Juror #1:
Juror #2: Plaintiff back-strike #3
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6:
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 – 2 – 4 – 6 – 11 – 13
—————————————————————–
Juror #14: Defense strike #4
Juror #15: Plaintiff strike #4
Juror #16:
—————————————————————–
Panel seated: Jurors # 1 – 4 – 6 – 11 – 13 – 16
—————————————————————–

Once again, the judge will ask if either side wishes to back-strike any jurors. This time, the defense strikes a juror:

Juror #1:
Juror #2: Plaintiff back-strike #3
Juror #3: Defense strike #1
Juror #4:
Juror #5: Stricken for cause (plaintiff’s request)
Juror #6: Defense back-strike #5
Juror #7: Plaintiff strike #1
Juror #8: Defense strike #2
Juror #9: Defense strike #3
Juror #10: Stricken for cause (defense request)
Juror #11:
Juror #12: Plaintiff strike #2
Juror #13:
—————————————————————–
Panel seated: Jurors # 1 – 2 – 4 – 6 – 11 – 13
—————————————————————–
Juror #14: Defense strike #4
Juror #15: Plaintiff strike #4
Juror #16:
—————————————————————–
Panel seated: Jurors # 1 – 4 – 6 – 11 – 13 – 16
—————————————————————–
Juror #17: Plaintiff strike #5
Juror #18: Stricken for cause (plaintiff’s request)
Juror #19: Defense strike #6
Juror #20: Plaintiff strike #6
Juror #21: Defense challenge for cause DENIED
—————————————————————–
Panel seated: Jurors # 1 – 4 – 11 – 13 – 16 – 21
—————————————————————–

Later, when it becomes important to establish a record because you’re requesting an additional peremptory strike, you discover a juror impropriety, or something else arises, you’ll be able to tell the judge what you would have done differently if your request for relief had been granted.

[Special thanks to Herb Kellener for sharing this tip!]

Let us know what you think

2 Comments

  • Bob Gerchen

    May 30, 2008

    Elliott–

    Excellent article! As a jury consultant, I do more selections than the majority of my clients and they often turn to me for a usable system for making/keeping track of strikes. While every venue is different (in MO, for example, once cause is argued, each side composes its strike list and they are given to the bailiffs simultaneously; there’s your panel. There are no backstrikes), this article points out a critical consideration in venues where they do alternate strikes and those where they use backstrikes.

    Thanks a lot.

    Bob Gerchen

  • Gene Odom

    August 23, 2008

    Great System. I try on average 4-6 civil jury trials/ year usually large physical injury cases, and have changed my system of “keeping track” almost each time. Any info regarding tracking panel answers for use during cause arguments would be helpful as well.

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