So here I am, sitting in the back of the classroom with a laptop.  My co-instructor Attorney Jim Fleming and I are teaching a CLE (continuing legal education) course geared for attorneys, on the topic of self-defense cases.  Jim is talking about jury selection.

Some of his advice is counterintuitive, but hell, if trial law was all intuitive, no one would need continuing training, would they?  And some in the audience are shocked when he says that as a criminal defense lawyer, he LOVES to have cops on his clients’ juries.  Of course, this is 180 degrees counter to conventional wisdom.  If the game is cops and robbers and your client has been cast in the role of the accused robber, wouldn’t a member “of the other team” be the LAST person you wanted on your jury?

Jim explains that police officers mediate disputes almost daily, from two angry drivers at an accident scene to spouses in mortal rage when the officers arrive to break up a “domestic.”  They’re attuned to listening to both sides.  During voir dire, the jury selection process, he’ll make a point of asking any cops in the jury pool if they can be fair to someone other cops have arrested.  He has found over the decades that these cops can be the most scrupulous of jurors…and other jurors, having heard this discussion with them, are reminded of their own duty to be fair and impartial.

Many of you reading this have served jury duty yourselves.  What are your thoughts and observations on this topic?  If you were, let’s say, charged or sued after a self-defense shooting, who would you want on – and off! – the jury that judged you?

1 COMMENT

  1. The lawyer teaching with you has experience. And his experience ought to dictate to his judgement.

    It’s been a long 15 yrs. since I served on a jury, due to my traveling contracts.

    My biggest concern would be simply having jurors that listen. The world I see and experience around me says that too many of my cohorts have the attention span of a toddler.

    In a pinch I’d say just seat 12 of my family members.

    🙂

  3. I am an attorney, and I chose to keep a police officer on a jury for a trial of three very serious felonies. I had reason to believe that the investigation by a different agency had been compromised and hoped that this officer would be able to figure that out. The case involved collection of specimens for DNA testing that required a very high degree of care. My client was found not guilty of the two most serious charges and guilty of the least serious. I do not know what role the police officer juror played in deliberations.

  4. That is a point I never remotely considered. I sat on a jury for a felony murder case years ago, my knowledge about self defense helped me understand many aspects of the case.

  5. Truly a loaded question. I have never sat on a jury. However, I did defend myself before a jury and during jury selection the first juror I sent packing was a woman that worked for an attorney.

    In an actual defense case I think the officer’s age would be part of my decision. Also, what is the political climate like? Perhaps the officer is anti gun, perhaps his job or advancement is dependant on his verdict. If his superior is anti gun, how would you suppose that he would vote? Locally, nepotism is rampant in the county pd as well as our largest city. How good of a case do you have? In my earlier years I believed everyone in the justice system was treated equally. Such is not the case.

    On the other hand a cop could look at your case and decide that hell, that could me up there.

  8. I don’t deal with criminal litigation; however, as an insurance claims consultant, I deal with civil litigation every day. One of my co-workers (a woman) has a theory about jury deliberations. Her theory is that the most opinionated woman on the jury will sway the panel to her position. Here’s how she gets there (and she has been on a jury herself): Men, when arguing, tend to state their position, say what they have to say and then fold their arms across their chest. At that point, men are done arguing. They have nothing else to say. Women on the other hand, according to her, will keep yapping until everyone gives into her just to get her to shut up. Frankly, I’m not entirely sure she is wrong.

  9. Who would I want to face on a jury.

    First off, no Moms, Mayors, or other people from Everytown.

    CHLs/gunowners would be nice, presuming I hadn’t screwed something up. (The guy obnoxiously open carrying at a youth baseball game wouldn’t want me on his jury.)

    LEOs? Presuming the case was self-defense it would depend on a couple of factors. First, what is the local LEO attitude about “civilians” legally carrying. Fort Worth cop, okay. San Francisco, notsomuch.
    Second, who’s the other party? Did I have to shoot a “good citizen” or one of the cop’s “frequent flyers.”

    I would prefer people who are active and probably older, who have real-world experience as opposed to TV. Here’s another point for LEOs, they won’t buy the “you shot him too much” or “OMG hollowpoints” arguments.

    And I think I’d want someone who was rough around the edges, who had been in bar fights and could see through the “unarmed football player” fallacy.

    In real life, of course, I want you picking the jurors.

  10. I was dismissed from a jury once. The defense (civil trial) lawyer stated that local custom trumped state law. He asked if anyone had a problem with that. I said I did. He got in my face, pointed behind himself at the judge, and said, “What if His Honor instructed you that way?”

    I replied that I had recently read the drivers’ manual, and I knew what was in it. It didn’t matter what the judge said.

    Juror dismissed!

  11. Depending on the state and potential outcome, I might want someone who understands jury nullification.

  12. Years ago when I was a young officer, I was called for jury duty In the rural county where I lived, adjacent to the county where the major city that I worked for was.
    It was pretty common knowledge that police officers seldom were ever seated as jurors, but judges had stopped the practice of giving officers an automatic bye, forcing defense counsel to use one of their “strikes” to dismiss the officer.
    During voir dire, both the prosecution and defense gave a brief description of the case.
    It seemed that the defendant, a newly retired man in his 60’s, had purchased a home in a rural part of the county, and hired a local painter to paint the interior. The painter worked a couple of days, asked for an advance on the amount he had agreed to, then didn’t show up for a couple of weeks, returned painting a little more, then asking for another advance. This continued until the painter had received the total amount for the job and didn’t return even though the job was half finished.
    The owner of the home removed the painters’ equipment, locking it in a storage shed, refusing to return it until the job was finished.
    The painter went to the prosecutors office and filed theft charges. The prosecutor accepted the charges.
    Defense counsel ask me if I had ever dealt with a similar situation, to which I answered yes. He then asked me how I would have handled the situation as it had been described. I replied that what I had heard so far sounded more civil than criminal in nature, but that I couldn’t know for sure until I had heard all the facts.
    When counsel presented their strikes, both the judge and the prosecutor seemed surprised that the defense had not struck me.
    The judge sent the seated jurors to the jury room where they elected me foreman.
    When the prosecutor found out that I had been elected foreman, he stared at me for a full two minutes in silence. He then asked to approach the bench and dismissed the charges without prejudice.
    It was obvious that this was a case where a prosecutor was attempting to help out a local “good ol’ boy” at the expense of a “new guy”, and the defense trusted me to see through the ruse.

  13. Hi Mas,
    I’ve been willing to serve on juries in the past, only to be dismissed when the defense is told that my father worked with New York vice squad (they asked if you even had any relatives that worked in law enforcement).
    Which is why, IF my conscience was clean about the way I defended my self, I’d welcome law enforcement on my jury. As was mentioned, they understand hearing both sides of an issue, but also how things don’t always happen as you would like when you have a tenth of a second to decide on how to best defend yourself.

  14. Mas, In answer to your last question, if I was guilty, the last thing I would want would be an officer on the jury. If innocent, absolutely.
    An attorney who plays golf with judge is usually a plus also.

  15. Actually at 62, I’ve never been on a jury, other than in the military… I’ve always been dismissed as soon as they find out I’m military now military retired. Good point though! Especially in a self-defense situation…

  16. Counterintuitive, yes, but an anecdote in support…

    Back when I was still sworn, and routinely going to Traffic Court, I was tapped for jury duty (note: in the event, I was never selected for a jury pool, so I never even appeared for [i]voir dire[/i]). After my time was up, I was discussing it with a defense lawyer friend of mine. I made a joke about, had I been selected for the pool in a criminal case, asking the judge if I should be excused now, or should I make Counsel use one of their strikes?

    He started to smile, thought about it for a moment, then slowly said, “…Actually, I think that, if it were my case, I’d fight to keep you on the jury.” At my obvious surprise, he elaborated, “I know that you aren’t overly impressed with prosecutors or cops, and you have a good BS detector. So, I’d want you on the jury for one of my cases, especially if my client was innocent.”

    Best backhanded compliment I’ve ever gotten…

  18. I would want folks who understand and appreciate personal responsibility, self reliance, what guns are and how they operate and what can occur during confrontational situations. LEOs would clearly qualify. At the risk of being politically incorrect, and although times are changing, I would be less comfortable with a contingent of young females and don’t even ask me about Harvard graduate students. In the end, we should all hope the jury is composed of that “reasonable person” and that we have acted in an unimpeachable manner. My final wish would be to have Mas’s number on my speed dial list.

  19. Jim Fleming is a fine attorney, well worth his rate. if he says cops are what I want on my jury, I say pick them! The typical officer is placed daily in position to try and determine the truth of a situation, despite appearances. If you are correct, that the truth will set you free, then cops are the right pick. Also, please let us lawyers in your readership know when you are teaching a cle, I need the credits!

    Sam

  20. Where a police officer is a witness, one question not to be overlooked is whether the potential jurors would attach more or less weight to the testimony of a police officer merely because he is a police officer.

  21. For years I would have thought it to be counter-intuitive for the defense attorney to choose a police officer for jury. A few years ago, an incident changed my mind about this. I served on a jury after the jury pool turned out to be very hostile to the defense. More than half of the pool was struck from consideration by the judge after they were questioned during voir dire and the vast majority stated they saw no reason for a trial since the grand jury had already indicted the accused. One of the other jurors was a lead investigator for local police department and knew most of the officers involved in the investigation. After a couple of days of testimony, the accused “copped a plea” and the trial ended without deliberation. When we visited with the defense and prosecuting attorneys afterward, both stated they wanted the evidence to be viewed and a fair verdict rendered rather than a mistrial due to the jurors. The investigator from the other city was the most critical (and factual) of the jurors concerning the investigation. He pointed out several errors in the investigation that would have been in favor of the defense. He also stated that no investigation could be perfect. This trial left me feeling disturbed that so many people would just as soon skip the trial. They had no understanding of the grand jury and trial process (or they were liars). As an aside, if you burglarize a building with a security camera, don’t drive a purple car with a donut spare tire then park three blocks away from the crime scene.

  22. On: mature, intelligent adults who are strong enough to resist emotional pressure.

    Off: bleeding-hearts and weaklings.

    If a legitimate s-d shooting is followed by a prosecution, then it’s likely that there’s political pressure to railroad the shooter. I’d want a jury that won’t be intimidated by hints of mob violence if they don’t convict.

    It might be more interesting to ask who one would want on a jury trying alleged gun offenses.

  23. Sam, Jim and I will do our next CLE on this topic in Colorado Springs. Go to my website, http://massadayoobgroup.com, scroll over to the far right where the CLE’s are listed, and you’ll find all the details on the course and sign-up procedure.

    While the program is geared for trial lawyers, we welcome cops and firearms instructors as well. They have the same “need to know” factor.

  24. A lawyer that visits our local gun shop regularly was once asked who he tried to have serve as jurors – he stated they often look for teachers (but I don’t know the reason why).

    An employee of the gun shop recently sat on an interesting case.
    1. A deputy parked his car on the man’s property (at night), either staking out someone else or just seeing what came down the road?
    2. When the fellow returned home, as he was going up his (long) driveway, the deputy hit him with his headlights.
    3. The homeowner, not knowing what was going on, continued to his house, went inside, and returned to his porch, pistol in hand.
    4. The deputy (in plain clothes, AND his patrol car was both unmarked and had no emergency lights as it was in the process of being repaired after a wreck), confronted the home owner.
    5. As soon as the home owner realized who he was, he put away his gun.
    6. When he did, he was tackled by the deputy!
    7. Numerous charges ensued.
    8. In court, a lot of the jurors (many teachers) wanted to hang the homeowner, but the gun shop employee told them he was retired (the gun shop is just a part time job), and he was willing to stay as long as it took – he was voting not guilty of all charges. He pointed out how much was wrong with this case (deputy in plain clothes, on the homeowner’s property at night, with an unmarked car).
    9 The other jurors relented, and the home owner was found not guilty of all charges.

    Seems “teachers” weren’t going to do this homeowner any favors!

    I also had a friend that used to regularly get called for jury duty – he told me he always tried to work into the conversation that he was a member of MENSA.
    He said it always seemed to get him tossed from the jury pool, which was his intent.
    I assume he got tossed by the guilty party’s lawyer?

  25. Assuming we’re talking about some kind of confrontation involving violence and that I am innocent: I agree with Roger in NC, I would want anyone on the jury who has knowledge of firearms and can cut through the BS that the TV serves up. No air-heads or LA-LA people, no one with an ideological ax to grind. Some LEO’s sound good. If a department was anti-gun in nature, I don’t think I’d want any LEO’s who worked in the office, only LEO’s who are on the street.

  26. I got (thankfully) tossed off of a jury for cause because I knew about the murder weapon, a Glock – by the Prosecutor. I have no idea what she was thinking. In almost every way, I was the archetypical hang-’em-high juror. Except for a tendency to think for myself.

    This was the early ’90s, when the foreign “plastic” gun was an unknown, with a taint of illicitness.

  27. I am a trial lawyer who has handled a fair number of civil cases. In a civil context, I would be concerned that because a police officer generally has experience with the most serious matters in law, he or she would think a civil claim just wouldn’t be that important.

    As an anecdote, I had a court security type deputy sitting on a civil jury last Fall. The verdict went against us. I talked to him after the trial and was disappointed to find that while he believed something bad had happened to my client (it was a sexual battery case in the workplace), he went off the rails speculating about matters outside the evidence (and, truly, things that did not happen). My lesson from that is that just because someone has a badge, it doesn’t make them a super juror. They have their own biases, just like everyone else. Obvious, I know, but the hard lessons are.

  28. I have been on two juries. Learned a lot from each. Mainly how EASY it is for one person to sway jury. (and how little general knowledge most folks have)

    One was semi “accident” Driver was stupid, failed to set brakes, got injured when his own truck smashed him against wall. Folks on jury wanted to “give him something, as XYZ corp (on who’s property this happened) have lots of money and likely good insurance”
    So I was in minority. Couple hrs later it was 90% his fault, 10% corp. (not fair but I was not going to waste another day)

    I feel bad he got injured. But he was cause. AND on dual tires. If outside tire is rolling the inside tire can NOT be stopped. (bolted togeteher)

    2nd I was foreman. At end of first day many said “lets just vote now as he is guilty as sin” If reported to judge that could have caused issues…
    Well he was guilty. BUT his lawyer did very well with limited stuff he had. (I really should have gotten his name/card as he was guy if had innocent client would win)

    Still I bet I could have gotten him found “Not Guilty” on 3 most serious charges if I had pushed.

    I would love to have tried. (if it ment nothing) and see.

    IF I need jury. I want folks who can THINK, Reason, pay attention for more then 10 min, and willing to ask questions. (some life knowledge other then school would be great)

  29. LEO on the jury:
    If I am truly innocent and I believe the evidence supports my innocence, and I am a white male or female, probably OK.
    If I am an innocent African American male, probably not.
    And if I am like the vast majority of accused, and guilty of at least part or all of the charges against me, no way in … !

  30. I once served on a Grand Jury for several months in an affluent suburb of Washington, D.C. It was extremely educational in many ways. For one, I found out that there was a lot more crime going on around the area than was reported in the news. It was also interesting to learn what kinds of crimes were being committed & where they were being committed. Getting to know the other jurors was quite an experience, too.

    Our foreman was a lawyer who was afraid of the Grand Jury Judge & did whatever he was told to do by that judge or by the State’s Attorney. For instance, if we were investigating something that the judge didn’t want us to look into, the foreman would do everything he could to end it. He even told other jurors that we would all go to jail if we didn’t stop what we were doing, despite the fact that by law our Grand Jury was supposed to be an independent legal body that is not presided over by the courts & was not answerable to them. In fact, part of our responsibility was to protect innocent people from overzealous prosecutors by refusing to indict them.

    We also had an accountant on the jury who was extremely upset that he was not excused from jury duty during the height of tax season & refused to cooperate with any of the jury proceedings because he was losing so much money by having to appear for duty.

    The worst jurors, however, were two gray-haired ladies who always voted to indict the accused, even when there was no evidence to support the charges. (I learned from this experience that some prosecutors will try to to get an indictment, despite a lack of evidence, to use as leverage against the accused for a plea bargain or to get him to testify against someone else). After hearing one case where these two ladies were the only jurors to vote for an indictment, I asked them why they always voted to indict even when the accused appeared to be innocent. They told me that “If he wasn’t guilty, he wouldn’t have been arrested” & they really believed it! The scariest thing is that all of these jurors were (presumably) well-educated, upper-middle class citizens. Fortunately, there were enough other members of the jury with common sense that we could actually function the way we were supposed to….an example of strength in numbers, I guess.

    One other observation that I made back then still puzzles me. About 90% of the perpetrators that were arrested & presented to us for indictment were incredibly stupid, making mistakes that would inevitably result in their conviction. That led me to wonder whether (nearly) all of the criminals the area were really that stupid or if the idiots were the only ones that the police were capable of apprehending? My guess is that the majority of the criminals are pretty stupid (or they wouldn’t choose to be criminals) & therefore they comprise the majority of the arrests, but the jury is still out on that one.

  31. I’ve been a federal and state prosecutor for 29 years. I always want police officers on my jury, but the defense always [ALWAYS] strikes them. Guess why? That your defens attorney friend keeps LEO’s on the jry surprises me–maybe he just likes to “play against type”, but I have to blieve his clients pay for it. LEO always see through the typical criminal attorney BS and convict, if the evidence merits conviction. Defense attorneys take a jury to begin with, and not a judge trial, becaue they think [rightly] that a niave jury of civilians is easier to bamboozle.

  32. Morally-conscious, ‘Rights’-respecting, just-and-fair Law-Abiding, Peaceable and independent American Citizens who are;-
    well versed in the Judeo-Christian Philosophy;
    of strong Moral and independent Character;
    knowledgeable of the ideas, ideals, principles, standards and values embodied in the Founder’s beloved American Constitutional Republic form of government;
    personally experienced with Fire-Arms; and
    are fully informed with regard to Jury Nullification*
    Soap Box, Ballot Box, *Jury Box, Cartridge Box.

    *”If a juror feels that the statute involved in any criminal offence is unfair, or that it infringes upon the defendant’s natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.” — Chief Justice Harlan F. Stone

    *On the latter: “For more than six hundred years– that is, since Magna Carta, in 1215–there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such law.” –Lysander Spooner, The Right of Juries

    Do No Harm / Successfully Defend
    Gw

  33. My view…if I have to defend myself for a self defense shooting
    against criminal charges.

    First, we really don’t have a criminal justice system anymore…it has evolved from the 60’s into a criminal legal system, and justice may or may not be a result of the process. In reality, it is a contest between lawyers, who are essentially taught to defend anything, and believe in nothing, with a judge acting as the referee.

    Secondly, understand something very clearly…there is ABSOLUTELY no such thing as a jury of your peers…that is an archaic concept. The Govt will try to get as many jurors on the jury as possible, who are absolutely nothing like you. So your lawyer must try to do the opposite.

    So my answer to your question is that if I were involved in a self defense trial, I would want private sector conservatives/businessmen, 2nd Amendment
    supporters, gun collectors, hunters, concealed carry permit holders, NRA members, and people with an IQ over 110 who are able to understand the applicable laws, and arguments.

    I wouldn’t want most academics, brain dead Liberals, dumb asses, gun grabbers, and I would be skeptical about any govt employee ( not withstanding your comments about LE jurors…I thought they essentially couldn’t get on a jury anyway ) ….people tend to identify with others in similar professions, and tend to believe those folks. I think a policeman will tend to believe another policeman ( or prosecutor ), no matter what, and LE people are no more honest, or dishonest, than the public at large. Of course there may be an exception, but I wouldn’t count on that.

    Jury selection may be the most important thing a criminal defense attorney does…if he is really good at it and has a weak judge….well, you’ve heard of the OJ Simpson case.

  34. Street cop – yes.
    Politically appointed Chief – no freakin’ way.
    If my SD was justified, I want someone who can focus on that.

  35. I have no experience on the civil side, but I was a juror on two courts-martial and was voir dire’d off a third. During voir dire on one case, we were asked if we were police, relatives of police, friends of police, etc. I got booted off that one. My friend, who was a Security Forces commander at the time, said he was ALWAYS the first one kicked off any jury.

    On both of the last two, we were asked if we were NRA members. We went something like 7/12, so they couldn’t kick us all off the jury. The judge did, however, withdraw the firearm charge from our purview. Is “are you an NRA member” a question normally asked in civil juries?

    Back to the question at hand, good cops are welcome on my jury. Unfortunately, I doubt a “jury of my peers” is a reality in the 21st century.

  36. Drifter, I’ve found that to be a standard question in both criminal and civil case voir dire whenever guns are involved in the case. I always hope the defense lawyer is smart enough to ask the prospective jurors if they belong to Brady Organization, Moms Demand Action, etc.

  37. Everyone has overlooked the obvious – I want Mas on my jury!! Then it matters not who the other 11 are, because they will not only render the appropriate verdict, but will leave as educated critical thinkers who have a deep understanding of the act of self-defense.

    I’d wager that at least 4 of them would sign up for a MAG-40. 😉

  38. I would want someone like me. I was once falsely accused of an assault and acquitted at trial.

  39. After reading the very informative comments here, I’m wondering who ever gave lawyers (or anyone) the power to pick jurors. Seems to me it should be like a card game, you play the hand you are dealt. Randomly pick twelve citizens, and that’s your jury. That would be fair. Being able to pick jurors is unfair manipulation.

    These thoughts lead me to marksmanship contests. To find out who is the best shot, shouldn’t all contestants shoot the same gun? I don’t mean the same model, I mean the same gun. The first marksman fires a rifle, then it is cleaned and handed to the second marksman, and so on. Everyone fires the same gun with matching ammunition. I think that would show the best shot.

    Oh well, I’m just dreaming as usual. I belong working in Disney World.

  40. I have sat on juries before. I understand their necessity.

    What I do not understand is why on the jury questionnaire they are asking for personal Medical information. If my Doctor was put on the witness stand and asked about my medical history he would refuse to answer under Doctor Patient confidentiality. What give the jury selection office the right to ask these questions.

  41. Justin – there has to be a way – we must find it – to get opportunities for Mas to speak to the masses – yours is tongue-in-cheek, but also a start in the right direction. He has said previously that he “didn’t think they would be interested in what he had to say.” I couldn’t disagree more! If you’ve ever heard Mas speak, you know that he speaks as he writes…TO you, not AT you. He is not just intelligent and articulate, he instills in a listener that he is to be believed – that he speaks from a position of experience and knowledge. In my most humble opinion, if Mas were to be heard on say, a national broadcast, it would be the beginning of a sorely-needed national conversation on the issues we hold near and dear.