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In the American legal system, a jury trial is the summit of the district court mountain. Criminal cases advance towards the peak of trial, unless settled along the trek. For those that reach the top, a trial awaits. After a plethora of motions, stipulations, and procedural maneuvers, the first order of business is voir dire – selecting the jury.
For many trial lawyers, the case can be won or lost at jury selection. It is the first opportunity for lawyers to talk to the jury. The jury panel will immediately begin forming their first impressions of the attorneys, the case, and the potential outcomes. Thankfully, the attorneys get to weed out potential jurors through peremptory challenges and challenges for cause. A peremptory challenge can be used for any reason except for discriminatory reasons, such as race. See Batson v. Kentucky. While peremptory challenges are limited (typically five for the defense and three for the prosecution in Minnesota) challenges for cause are unlimited. When using a challenge for cause, the party must state the reason why the potential juror should be struck from the panel, which the most common reason is for bias.
Bias is often discovered through voir dire. During this process, the attorneys ask potential jurors about their experiences and opinions to discover bias about how they will decide the case. In criminal cases, the defense often wants to strike the most prosecutorial friendly jurors and vice versa for the prosecution. If a potential bias is discovered, such as a widow whose husband died after being killed in a drunk driving accident who is now a potential juror in a DWI case, then follow up questions are asked by the attorney and judge to see if that juror will set aside any bias and try the case impartially. If the widow says that she cannot be fair and impartial, then a challenge for cause will surely succeed in removing her from the jury panel. If she says she can set aside the bias and try the case fairly, then a challenge for cause will likely not be successful. The defense attorney may still use a peremptory challenge on the widow, but because peremptory challenges are limited, lawyers prefer to use those sparingly. If the widow says she “thinks” she can set aside her bias, then this is still not sufficient to survive a challenge for cause. Such language was recently analyzed by the Minnesota Court of Appeals in Ries v. State.
In Ries, during voir dire, the parties learned that a potential juror was a 911 dispatcher. When questioned about her potential prosecutorial bias, she said she would give more weight to a police officer’s testimony and would side with them in any conflicting stories. The defense asked to strike the juror for cause, but the judge said she was rehabilitated upon further questioning by the judge and denied the challenge. Ries’s defense had the option of using a peremptory challenge at the point to strike the dispatcher, but ultimately did not. In a post-conviction motion, Ries later argued that he did not receive a fair trial because the dispatcher was not successfully rehabilitated during voir dire upon defense’s challenge for cause. The district court agreed and the state appealed by reasoning that the defense should have used a peremptory challenge to preserve the issue for appeal.
The court of appeals disagreed with the state and held that a “defendant is not required to use a peremptory challenge to strike a juror who should have been removed for cause” to preserve a fair trial claim for appeal. The court of appeals also reasoned that “a juror is rehabilitated if she states unequivocally that she will ‘follow the district court’s instructions’ and ‘set aside any preconceived notions and fairly evaluate the evidence.’” In citing Minnesota Supreme Court precedent, the court found rehabilitation inadequate when jurors state they will “try,” “do their best,” “think they could,” “think it would be hard,” or “guess” they could set aside their bias. Simply, this terminology is not good enough to prove potential jurors will be fair and impartial. Spotting this language can help you preserve your peremptory challenges for jurors who are unwilling to reveal, or own up to, their bias.
Robert H. Ambrose is a criminal defense lawyer in Minneapolis, Minnesota. He is admitted to practice law in federal and state court. He was named a Rising Star by Super Lawyers; and was named a Top 40 Under 40 trial lawyer by the National Trial Lawyers Organization for the past three years. Criminal Defense Lawyers St. Paul; Federal Drug Crimes Attorney Minnesota; and St. Paul MN Criminal Defense Attorney.
 Voir dire is the fancy legal term for jury selection. The French term means to see or speak.
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