Law Times

Law Times • December 15, 2008 FOCUS PAGE 11 Jury selection: Ouija board or crystal ball? BY GRETCHEN DRUMMIE Law Times J ury selection has been com- pared to a science — much like picking winning ponies at the track. But recently, a team of expe- rienced handicappers cracked some of the myths surrounding the process, and passed along their insights during a work- shop at the Criminal Lawyers' Association conference. First out of the gate was Toronto lawyer Earl Levy who after 45 years in the business revealed a rule of thumb isn't always the way to go. He explained that when not you, it's his or her trial. It should be his or her choice." So, what about when quali- ties like occupation and demo- graphics are all you get to know. Are they predictors of a good or poor choice? "No, these are things that are very difficult to make a predic- tion about," said Neil Joseph Vidmar, professor of law and psychology at Duke University. "Sometimes the jurors have life experiences that may bear on how they view the evidence . . . and sometimes those things are hidden and you really don't know." Superior Court Justice Mi- he started practising in 1963 he made up his list of what he thought were acceptable and not acceptable jurors. "I gleaned that information from reading texts and speaking to more experi- enced counsel and also utilizing any experience I was gaining," said Levy. He said that at the time, an individual's job could influence his choice. "I generally liked artists and teachers, I gen- erally didn't like civil servants; I never liked security people." Levy added that the nature of the charge could have an impact on his choice as could someone's cultural background, their sex may have had some bearing at times, and the types of witnesses being called could impact on his decision. But by the time he was 10 years into his practice, Levy moved away from sticking reli- giously to his list and relied more on "hunches and instinct," and "eyeballing" the potential ju- ror as they walked to the front of the room. "I watched their body language, their eye move- ments, I listened to what they said, how they said it." Then, there was an "epipha- chelle Fuerst added a valuable tip to the discussion by advising lawyers that if it's a case of long duration, ask the judge to use the same process which is often used for larger trials with challenge for cause. That is, after the initial vetting process, ask to have them divided into groups of 20 to 25, returning at designated times and then questioned individu- ally by the judge as to personal hardship issues. "You might be surprised at the additional in- formation that will come out of that perspective juror's mouth when he or she is alone in the courtroom with just the judge, counsel, and the accused. It is really quite surprising the infor- mation people feel comfortable volunteering on hardship issues in that setting when they might not feel comfortable volunteer- ing when the entire panel is sit- ting in the room listening . . . I think it does give you that little bit of extra information that might help you," she said. In cases where there's chal- lenge for cause, but on a lim- ited basis, maybe Parks, there are ways to use the process to a client's benefit. Bryant said the "first thing you do is challenge the format of the Parks question. It shouldn't be limited; the question should be open-ended." He added that it's important to listen to the answer. "If you have anything about the answer that is interesting, like it's more than a yes or no, take the op- portunity to make submissions to the triers — you're allowed to do it. Be very brief. [Say,] 'Tri- ers, you heard this answer. The person was thinking about it and was a bit hesitant, but on balance at the end of the day he felt he might be a pretty good juror. I think you ought to go with that even though there was the hesitation.' You might not want to do it with the first or second potential juror but you might want to do it with the third or fourth. What it does is it gives you a leg up; it's your [chance] to make submissions to the body of people that are going to become the ultimate jurors . . . It gives you a chance to start talking to the jurors and start making an impression." Meanwhile, as a result of a re- cent amendment to the Crimi- nal Code, the defence can now ask in certain circumstances that two non-jurors, people who are not going to serve on the jury, act at the triers for the duration of the challenge for cause process as distinct from the traditional approach. "My first thought is what if you select those two triers and they are wacky, idiosyncratic, or they are incompetent, they are going to be choosing your whole jury and I think you run a real risk [with] those particular triers," said Vidmar. "It just depends on a toss of a coin who those triers are going to actually be." Bryant said the old way is the best in his opinion. "I think it's absolutely critical in terms of go- ing through the vetting process they get to understand what it is to be judged themselves." "I don't see a whole lot of advantage to that [the new] ap- proach and see a disadvantage potentially," said Fuerst. "I think it's better to get each member of the jury panel as engaged in the process as you can from the outset with a view to the fact that they may actually end up sitting on this jury. So I would encourage you, unless you have very good reason to stick with the so-called traditional approach." LT ny." Levy had a client who had a bad criminal record for crimes of dishonesty, charged with bank fraud. He'd exhausted all his challenges by the time 11 jurors were chosen; he had to accept the next one called. And that person was a bank manager. "I faked it, I said, 'Acceptable,' with the same tone I would have used if it was the accused's mother. I had a painted smile on my face while at the same time it felt like a herd of bats was flying around in my stomach." This was when the judge had no discretion to exclude an accused's criminal re- cord, and in this case it was nec- essary to call his client so the jury heard his sheet "in all its glory." To top it off, the bank manager was chosen as the foreman. The verdict was . . . "not guilty." have a rule of thumb it is not to have a rule of thumb" anymore with jury selection. Toronto lawyer Tony Bryant agreed with Levy "there is no real rule of thumb." But what if the client tugs on And Levy's lesson was: "If I your sleeve and whispers, "No," when you've decided a potential juror is a fit. Do you let the cli- ent overrule? "In most cases I would," ad- vised Bryant. "My view is the client is the person on trial; it's Criminalspectrum.indd 1 For a FREE product demo contact your Account Manager at: www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. www.lawtimesnews.com LT1215 12/11/08 9:50:40 AM

• Cover
• Remembering Irwin
• Benchers Diary
• Focus On Criminal Law