Limiting the participation of counsel during jury selection (or how to make a lawyer’s head explode)

Photo credit:  Robotclaw666's photostream per Creative Commons license.

Photo credit: Robotclaw666’s photostream per Creative Commons license.

Lawyers hate it, but in the federal courts the participation of lawyers in jury selection (voir dire) is typically quite limited.   For among other reasons, this is because the Supreme Court has vested very broad discretion in the federal trial judge to pick a jury in the manner the judge thinks best:

No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood, 299 U.S. 123, 145–146, (1936) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emphasized, is “particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594–595  (1976) (internal quotation marks omitted)

Skilling v. United States, 130 S.Ct. 2896, 2917  (2010) (in a very high-profile case, jury selection that took 5 hours, where lawyers were not allowed to ask initial questions and instead the judge did the initial questioning, complied with the Constitution; observing that other measures were used by the judge to assure impartiality such as giving more than the required number of peremptory challenges, allowing follow-up questions by the lawyers and using written jury questionnaires) (certain citations omitted).

Federal Rule of Civil Procedure 47(a) likewise gives the federal trial judge a lot of leeway to keep the lawyers quiet:

(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

Similar provisions govern criminal cases.  See Federal Rule of Criminal Procedure 24(a).

My Philosophy:  There are two views about jury selection.  One is the English rule.  The other is the American rule.

Predominant in the federal courts, the English rule assumes that lawyers should be seen and not heard during jury selection because the one and only reason for questioning jurors is to obtain a reasonable, but not perfect, assurance that the prospective panel is impartial.  Basically, there is only one question for a prospective jury panel member, and that is: “Do you know anyone involved in the trial?”  The English rule is judge driven based upon the belief that the parties really don’t want impartiality, they want to win.

The American rule is premised on the idea that jury selection is intended to insure impartiality on a deeper (cosmic) level.   The American rule is based upon the notion that impartiality is best achieved when the lawyers engage in a competitive enterprise to bias the prospective panel toward the positions of their respective clients.  Predominant in the state courts, the American rule is lawyer driven.

Can you guess what rule I favor?  Right.  I favor the English rule.  Actually, and as you will see if you read further, I favor a modified English rule.

United States District Judge Robin Cauthron from Oklahoma, a very experienced trial judge, who served on the state bench and as a United States Magistrate Judge prior to her appointment, summed up my thoughts pretty much exactly:

The last thing any lawyer wants is a fair jury. That’s not what you want. You want a jury that’s going to find for your client, and every lawyer-conducted voir dire is designed to influence the jury. It’s not designed to find fair and impartial jurors. If you’ve ever seen a trial proceeding in England, the only question that’s asked is, “Are you related to the parties?”

The point is that you have an impartial jury, not one that’s inclined to find in your favor but one that’s impartial. Now, knowing that, I know it’s very difficult for lawyers to establish a rapport with a jury and that you feel that disability going in. I have been on the state bench as well as the federal bench, and it was very common in state trials, criminal trials, for the jury selection process to take a week and for the trial to take one day. Now, if you think there is not a lot of unnecessary stuff going on in jury selection that takes that long, you’d be wrong. It is that experience, I think, that causes the federal court to be so restrictive in its voir dire practices.

PANEL TWO, Robin Cauthron, Dee Benson, Bruce Hall and David Cunningham, Tenth Circuit Judicial Conference, Santa Fe, New Mexico (2000), available as a law review article entitled WHAT TRIAL JUDGES WOULD LIKE TO SAY TO TRIAL JUDGES, 31 N.M. L. Rev. 241 (2001).

My Process:

What I will next do is to describe the process of jury selection I follow for both civil and criminal cases, a process that I have used for more than 25 years.  I will break the process into component pieces.  After I describe each component of the process, I will explain why that component is utilized.

  1.  Prior to trial, counsel are provided with a lot of written information relevant to jury selection. Counsel are provided with a jury questionnaire completed by individual prospective jurors that was developed by lawyers serving on our Federal Practice Committee.  The lawyers must destroy the questionnaires after the trial.  The one-page document provides the lawyers with details lawyers think are important.  The form of the questionnaire is available on our website. From my perspective, the questionnaire is a sop to the lawyers and, more important to me, makes it very difficult for a lawyer on appeal to argue that my limitation on lawyer voir dire was reversible error.  Additionally, for both civil and criminal jury trials, I have prepared hand-outs that are available to the lawyers on our website.   The hand-outs describe in greater detail much of what is written in the following portions of this post.  The hand-outs include (a) the “short list of my eccentricities,”  (b) the background questions I ask jurors to refer to when introducing themselves, (c) the questions I typically ask during voir dire and (d) my stock preliminary jury instructions.
  2. After I have completed my jury orientation (described in an earlier post), the prospective jurors are brought back into the courtroom. Out of the entire group, a smaller group of potential jurors are selected at random using a computer program. For criminal cases, I typically seat 31 potential jurors out of the entire group in order to get 12 trial jurors plus an alternate.  I typically seat 14 potential jurors for a civil case in order to get 8 trial jurors.  After these prospective jurors are seated, the lawyers are given a huge seating chart (about 3 feet square) and the name of each seated juror, together with brief biographical  information, is shown in the boxes.  The boxes correspond with the seat where a particular juror is located.  This chart provides the lawyer with an easy reference while questioning the jury.
  3. The prospective jurors are sworn.  The jurors are assured that the questioning is not intended to pry or embarrass.
  4. By that time, the courtroom deputy has provided each prospective juror with a one-page document entitled “Background Questions.”   Basically, the questions ask for name, city of residence, marital status, and employment status of the juror.  Then, each prospective juror is handed a microphone and in turn speaks aloud and introduces himself or herself to the lawyers by reciting the information asked for on the sheet.  This is done to help each panel member relax and become accustomed to speaking in open court.  The juror remains seated.
  5. The lawyers are asked to introduce themselves and any colleagues or case agents or parties seated at counsel table.  The lawyers are then asked to recite aloud the names of witnesses who may be called to testify.  The  prospective panel members are asked to keep in mind any name that sounds familiar.
  6. I then begin to question the panel.  My questions are directed to the panel as a whole.  For both criminal and civil cases, I have a list of questions I typically ask.  Counsel are provided with a copy of that sheet prior to trial.  If a juror responds to one of my questions, the juror does so by using a microphone.   Jurors are told that if a sensitive matter arises, and they would prefer not to speak about the matter in front of everyone else, they may come to the bench.  If that happens, white noise is pumped into the courtroom and the lawyers and I speak with the juror at the bench.  The bench conference is recorded as is the entire process of jury selection.
  7. After I am done questioning, I allow counsel to inquire about anything they wish.  Each side has 20 minutes, and the time limit is strictly enforced.  Counsel must use the podium, and must not stray from the podium.  Counsel may challenge any panel member for cause.  If so, that challenge is done at the bench outside the hearing of the prospective jurors, white noise is pumped into the courtroom, and the conference is recorded.
  8. After each side has questioned the panel, and after each side has “passed the panel for cause,” the lawyers then exercise their peremptory challenges.  The courtroom deputy (CRD) takes a reduced version of the seating chart, and stands between counsel and their tables.  Starting with the plaintiff, she hands the seating chart to the first lawyer who exercises a challenge by striking the name from the seating chart and placing the lawyer’s initials next to the strike.  The second lawyer follows suit.  The process continues back and forth until a jury has been selected.  During this time, the prospective jurors remain in the courtroom so the lawyers can put a name with a face.  While the lawyers and CRD are working, I generally give the panel members a little talk about the history of the court.
  9. My goal is to complete the jury orientation and pick the jury before noon.  I accomplish that task almost 100 percent of the time and no matter the complexity of the case.

In summary, there are as many ways to pick a jury as there are judges.  I don’t pretend that my way is the best.  I am convinced, however, that the method I employ is efficient and results in a jury that is more or less impartial.   In the real world, that is all that should be expected.  Besides, I like watching exploding heads!

RGK

The hoped for essence of this blog

If you haven’t read it, I heartily recommend Lynne Olson’s Citizens of London (Random House 2011).  In it, Ms. Olson tells us about three great Americans who, while living in London, stood with Britain in its darkest and finest hour during WWII.

One of those great Americans was the broadcaster Edward R. Murrow.  In Olson’s book, I ran across something that Murrow said that perfectly encapsulates why I am writing this blog.  Olson quotes Murrow this way:  “It is difficult to explain the meaning of cold to people who are warm, the meaning of privation to people who have wanted only for luxuries. . . . It is almost impossible to substitute intelligence for experience. Id. at p. 142 (emphasis added).

Photo credit:  Wikimedia Commons.

Photo credit: Wikimedia Commons.

So much of legal discourse these days turns Murrow’s dictum on its head.  We see it in the academy and we see it in the Supreme Court.  We see it in the law reviews.  Over wine and cheese or beer and bratwurst, the Federalist Society and the American Constitution Society revel in it.  We glorify intelligence and denigrate experience.

While claiming not one iota of his talent, I stand with Murrow.  That’s why I am writing this blog.

RGK

Judge Heaney and the Silver Star

On Friday, I posted about Judge Ross and the judge’s valiant service in the Army Air Corp during WW II when he was twice awarded the Distinguished Flying Cross.  Today, I want to remember Judge Ross’ dear friend, Judge Gerald Heaney, who also served for many years on the Eighth Circuit Court of Appeals.

Judge Ross and Judge Heaney could not have been more different when it came to their politics.  Both men were very “heavy hitters” on the national political scene and in their respective political parties.  Nonetheless, both men had a strong kinship when they served together as judges.   Their friendship was evident and very moving to those of us who had the opportunity to see it first hand.   I believe that  their mutual respect and true affection arose out of the fact that both Judge Ross and Judge Heaney had a perspective about what was truly important.  In my view, that perspective was forged during the war.

Judge Heaney was an officer and an army Ranger.   He won the Bronze Star, but it was the Silver Star for heroism on D-Day that speaks most loudly.  Remember the old movies showing someone rushing a machine gun hidden in a concrete pillbox?   In Judge Heaney’s case, life imitated art.

Here, in the sparse language the military favors, is Judge Heaney’s Silver Star citation:

FIRST LIEUTENANT WILLIAM G. HEANEY, 01309733, Infantry, United States Army, for gallantry in action in connection with military operations against the enemy on 6-7 June 1944 in France. Upon landing at Omaha Dog Green Beach, Vier Ville-sur-Mer, Lieutenant Heaney and his men were pinned down by heavy enemy machine gun,mortar, and artillery fire. With utter disregard for his personal safety, Lieutenant Heaney stood up, induced his men to continue the attack and led them across the beach to accomplish their mission in due operational time. The undaunted courage and leadership demonstrated by Lieutenant Heaney reflect great credit upon himself and are in keeping with the highest traditions of the Armed Forces.

Reprinted in Judge Myron Bright’s letter of nomination of Judge Heaney for the Edward J. Devitt Distinguished Service to Justice Award for 2005.

Image credit:  Wikimedia Commons.

Image credit: Wikimedia Commons. The Silver Star is awarded for “gallantry in action against an enemy of the United States.”

I had the great good fortune to know Judge Heaney.  He was a quiet, gentle and kind person with a towering intellect and a deep concern for the common man.   Sadly, Judge Heaney is gone now.  Nevertheless, we need to remember him for the extraordinary courage he displayed during two days in June, 1944 and for so much more.

RGK

Crossing the line

I don’t know why, but my thoughts turned this weekend to a time fairly long ago when,as a magistrate judge,  I sentenced people to jail for crossing the line at  StratCom headquarters at Offutt Airbase in Omaha.   These folks, part of the Catholic Workers movement, protested against the military and nuclear weapons by crossing a line at the base entrance.  Two fellows in particular come to mind.

One was Father Frank Cordero.  Big Frank, a former wrestler, raised hell throughout Iowa and Nebraska protesting against various and sundry things.  He was (and I presume still is) a smart ass.  One time, after I sentenced him to jail for six months, he surrendered to the US Marshals with a cross made out of hack saw blades.  I think he ended up at MCC in Chicago.  If he did, he wasn’t laughing.

Photo credit:  Frank Cordero and

Photo credit: Frank Cordero and No-Nukes.org

The other fellow I came to know was Rich.  He crossed the line, but agreed to abide by probation.   I learned that Rich operated a shelter for men down on their luck and often just out of prison.  About that time, I married Joan after the death of my first wife.

True to her faith, Joan insisted that my kids learn about the poor.  So, I contacted Rich.  Over the next several years we spent Thanksgiving with Rich’s guys delivering turkeys in North Omaha.  It opened eyes wide.  Later, we lent Rich a little money to keep the shelter running.  Rich repaid us in full.  But, he gave us so much more.

RGK

Judge Ross and the Distinguished Flying Cross

As Memorial Day approaches, I have been thinking a lot about my old boss, mentor and dear friend Judge Donald R. Ross.  Judge Ross served for many years on the United States Court of Appeals for the Eighth Circuit.

Judge Ross was a bombardier, and later a lead bombardier, during WW II.  He flew with the 306th Bomb Group.  Serving two tours, and flying nearly 50 missions, the judge was awarded the Distinguished Flying Cross.  In fact, he received that citation twice.  The Cross is awarded for “Heroism or extraordinary achievement while participating in an aerial flight.”  The judge is a  genuine war hero.

Image Credit:

Image Credit: Wiki Commons

Although he is frail, Judge Ross remains with us today.  His service during the war and thereafter should be remembered.

Some things are more important than others.

RGK

On being a stranger in a strange land

Let’s say you came across the Mexican border illegally to find a job.  You have no criminal history.

You landed in the Midwest and found a job in a packing plant.   The work is hellishly hard, but you can send money back to your parents.  Then, you got hurt and lost your job.  So, several friends of yours from down south talk you into shlepping a bit of meth.  About the second or third time you do, you get rolled up by the feds together with a whole bunch of your amigos.

Luckily, you aren’t going to do a lot of time–only five years.  That’s because of your low criminal history score and the fact that the government can’t put a boatload of dope on you.

You have never been in a prison or a jail until the feds arrested you.  You are tired and worn out.  You simply want to go back to Mexico and your parents as quick as you can.  As far as going back to Mexico is concerned, you know you will be deported anyway when you have done your 60 months.  However, five years seems like a long time.

So, you decide to cooperate.  You testify at a trial.  Your sentence gets reduced.  ICE picks you up from the US Marshals and is ready to deport you.

That’s when you learn that your parents have been “visited” in Mexico by friends of your friends.  They tell your parents that they will be waiting for you to return.  You know they aren’t kidding.

RGK

Ugliest federal judicial truck contest

A career law clerk to one of the magistrate judges told me yesterday that my posts on toilets were beginning to trouble him on a deep and psychic level.  He asked me to blog about something else.  That got me thinking.

RGK's 1991 truck.  Blotches are from RGK's attempt to paint over rust.  Bed entirely rusted through at the gate.  On weekends, when RGK doesn't shave, soccer moms are truly frightened when RGK rolls up next to them at the Wal-Mart.

My 1991 truck. Blotches are from my failed attempt to spray paint over rust.  On weekends, when I don’t shave, soccer moms and their children are frightened when I roll up next to their minivan at the Wal-Mart parking lot.  For fun, I sometimes lean out of the driver’s window and tell the little kids to give me their candy and they won’t be harmed, but then I quickly add, “just kiddin.'”

If I can’t blog about judicial toilets, maybe I can blog about ugly federal judicial trucks.  So, here is the deal, (1) if you are a federal judge or law clerk to a federal judge and you truly and regularly operate a really ugly truck, (2) send me a photo of it and (3) I will post the photo of the ugliest one on this blog.  You must identify yourself and submit to such probes as I think best to satisfy myself of your identity and position.

Bonus points are given for trucks that have gun racks.  Bonus points will also be given for monster trucks but they must be ugly and you must really drive the monster.  Low-riders, even though ugly, are likely to receive fewer points.

Lawyers and lay persons are not allowed to participate.  They are real people and as a result would have an unfair advantage over those of us who are more elevated.

RGK

Going to Texas

As regular readers of this blog (all two of you) know, I am obsessed with toilets.  As a result of taking senior status, I no longer have my own personal Article III commode.  While sympathetic to my plight, a correspondent informs me that things could be worse.

My attention has been drawn to the courthouse for the United States District Court for the Western District of Arkansas and the United States District Court for the Eastern District of Texas.  That building, located in Texarkana, sits on and is bisected exactly by the line that divides Arkansas from Texas.  I am told that there is a trial courtroom in Arkansas for the Western District and also a trial courtroom in Texas for the Eastern District–both in the same building.

Photo credit:  civilengtiger per Creative Commons license.

Photo credit: civilengtiger per Creative Commons license.

What concerns me is this:  My informant says that if you are in the courtroom located in Arkansas, and need to relieve yourself, you must walk over to Texas to do so.  If true, that’s plainly unconstitutional.  While I must walk three steps to use a common bathroom (ick, ick and ick), at least I can do so secure in the knowledge that I remain in Nebraska (with my judicial immunity intact).

RGK

PS For more on the general history of this unique federal courthouse, see the Arkansas Historic Preservation Program feature on this building.  For an interesting article about the cooperation between the two district courts, see the 2004 article in the Third Branch entitled A Split Court? Texarkana Sits on the Line.  For the potential constitutional problems of trying criminal cases in one courtroom rather than the other, see this 2008 post from the Volokh Conspiracy entitled Article III, Congress, and the Texarkana Courthouse.

Photo credit:  US Marshals Service

Photo credit: US Marshals Service

Judge “Buzz” Arnold, polymath, legal historian and former federal district judge

I am a big fan of legal history.   I spend a fair amount of time lending my meagre talents to the preservation of the legal history of the judges and courts in the Eighth Circuit as Chairman of the Board of The Historical Society of the United States Courts in the Eighth Circuit.

I am especially fond of legal history written by judges especially those who started their careers as federal trial judges.  How they find the time to do their legal work and turn out distinguished legal histories is beyond me.  So, today, I want to briefly highlight a great judge and a world-class legal historian.

While I am not generally a fan of portraits, this is one of my favorites.  It perfectly captures this gentle man.

While I am not generally a fan of portraits, this is one of my favorites. It perfectly captures this gentle man.

To say that Judge Morris S. Arnold (Buzz), of the United States Court of Appeals for the Eighth Circuit, is brilliant understates the truth.  The word “polymath” is a perfect description of the judge.  In addition to being a highly regarded legal scholar, the judge is a historian of the first rank.

Like his brother (the late (and much beloved) Richard Arnold who served with Buzz on the Court of Appeals), Arnold attended Phillips Exeter Academy in New Hampshire, graduating in 1959. Thereafter, he received a bachelor of science degree in electrical engineering in 1965 from the University of Arkansas in Fayetteville. He then attended the University of Arkansas School of Law in Fayetteville, having received the LL.B in 1968. He received master of laws (LL.M), and doctor of juridical science (SJD) degrees from Harvard University Law School in Cambridge, Massachusetts, in 1969 and 1971, respectively.

He was a professor at the Indiana University School of Law in Bloomington from 1971-1977. He was then the university vice president and professor at the University of Pennsylvania Law School from 1977–1981, when he returned to Arkansas as a professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock from 1981 to 1984.  In 1985, he returned to Indiana as Dean of the law school.

On October 23, 1985, President Ronald W. Reagan nominated Morris Arnold to a new seat as judge of the United States District Court for the Western District of Arkansas, based in Fort Smith, Arkansas.  The Senate confirmed his nomination on December 16, and he received his commission on December 17.  Arnold left the district court in 1992 to assume a judgeship on the United States Court of Appeals for the Eighth Circuit.*

Judge Arnold is the author of books, articles, book reviews, and speeches, mostly on the subjects of English legal history and colonial Arkansas. His research at archives in Spain and France allowed him to portray a colonial Arkansas previously unknown.  His book The Rumble of a Distant Drum: Quapaws and Old World Newcomers, 1673-1804 won the Booker Worthen Literary Prize and J. G. Ragsdale Book Award in Arkansas History. Arkansas: A Narrative History won the Arkansania Award.

In 2001 he was awarded the Porter Literary Prize for his body of work on colonial Arkansas. Most significantly, in 1994 the French government named him a Chevalier de l’Ordre des Palmes Académiques for his work on eighteenth-century Louisiana.

Buzz served as president of the American Society for Legal History and as vice president of the Selden Society (the only learned society and publisher devoted entirely to English legal history). As ASLH president, he helped establish the Law and History Review, which is recognized internationally as the leading journal in the field of legal history.  In 2012, at its annual meeting, the ASLH specially recognized Judge Arnold for his extraordinary contributions to the field of legal history.

Not bad for a really nice guy who started his federal judicial career trying cases in Ft. Smith.

RGK

*One of my few claims to fame is that my confirmation hearing to be a district judge in 1992 was held on the  same day that Buzz’s had his confirmation hearing regarding his nomination to the Court of Appeals.  That’s when I first had the opportunity to meet Buzz.  I have been in awe ever since.

Pulling aside the curtain to reveal how the wizard works

This will begin an intermittent series of posts regarding jury trials.   The posts will hopefully provide some food for thought on what really goes on with regard to jury trials in the federal courts.

Let’s start before the lawyers arrive to select the jury.  In virtually all federal courts, there is some sort of orientation, although how the orientations are conducted varies widely.  Over the last several decades, I have taken a very hands-on approach to jury orientation, and some might think my approach is unusual.   Anyway, here’s how I do it.

Initially, the prospective jurors see personnel from the Clerk’s office and are checked in.  They receive a briefing on practical things–like where to park–and sometimes are shown a video.  Then, they are brought to me.

I conduct my orientations in the courtroom where the trial will be held.   The lawyers are welcome to attend, but not participate.  The session is entirely informal and relaxed, and no recording is made.

I begin the orientation with a short talk.  I try to answer these questions:  What’s the constitutional reason for your being here?  How did you get on the list?  How is the typical jury trial conducted?  I explain voir dire, opening statements, witness examinations, and closing arguments.  I explain the burden of proof, who goes first and last and why that is so.  I tell the jurors not to worry about their safety, and explain that my name, telephone number and address are in the telephone book.  I explain what would happen if we had a security concern.  I explain how long they will serve, and our hours of work during trial.  I then have the jurors get up and walk with me into the middle of the courtroom.

We gather around the lawyers’ tables and peek into the computer hook ups, we examine the video screens, and push the “on” and “off” buttons on the microphones.  The jurors are told about interpreters and shown how the interpreters use the equipment situated next to the defense table.

The jurors will then see where the Marshals will sit if we are trying a criminal case.  We also talk about the roving Court Security Officers who will periodically enter the back of the courtroom and the fact that the CSO’s have earphones.

We show the jurors the camera that the United States Marshals Service uses to monitor the courtroom.  We also explain that since we are a pilot court for video recording, we have the capacity to video record trials.  Since the cameras are apparent, we tell the jurors whether the trial will be recorded or not.  If a video recording of a civil trial was expected, we would go into detail about camera angles, juror privacy and the uploading process.  We would turn on the video equipment and show the prospective jurors what a recording looks like.

Colleen, our courtroom deputy supervisor, sits in the witness box to illustrate to the prospective panel how the equipment works.  The prospective jury panel members gather around her as she illustrates and I yap.

Colleen, our courtroom deputy supervisor, sits in the witness-box to illustrate to the prospective jurors how the equipment works. The prospective jury panel gathers around her as she illustrates.  I yap.

Next, we walk over to and look into the witness-box.  The courtroom deputy (CRD) serves as a model and sits in the witness chair.  She manipulates the flat screen that permits the witness to draw things and display the drawing to the jury, the CRD explains the need for the witness to be close to the microphone, and she illustrates how the video presentation equipment (adjacent to the witness-box) can be used by the witness and a lawyer.

We then walk over to the locked door where the Marshals will bring in prisoners.  The jurors are told about the holding cells that are maintained in the middle of the building.

After that, we walk onto the clerk’s bench.  The CRD then shows the jurors her computer equipment, her timing equipment, her digital audio monitoring equipment and so forth.  Juror are told that we can provide them with battery operated headphones during trial to better hear soft-spoken people.  The head phones are demonstrated.  Digital audio recording rather than a court reporter is explained.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial.  This is pretty much the view that the prospective jurors get when the walk onto the clerk's bench.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial. This is pretty much the view that the prospective jurors get when they walk onto the clerk’s bench.

After that, 14 jurors are asked to sit in the jury-box to “test out the chairs.”   Use of the flat screens in the box as well as a large additional flat screen is explained.  The other prospective panel members gather around the jury-box.

We then walk up the stairs to the judge’s bench.  We can accommodate 17 jurors at a time.  The CRD sits in my seat and shows the jurors the computer equipment, panic alarm button, and toggle switches for the lights.  We talk about bench conferences, the reasons for them, and the “white noise” that will be pumped in when a bench conference occurs.

View from the judge's bench.   The prospective jurors go up on the bench during orientation and see what I see.

View from the judge’s bench.  All the prospective jurors go up on the bench during orientation and see what I see.

 

 

 

 

 

 

 

 

 

 

 

After all the jurors have gone up on the bench and looked around, we then go through the recessed door in the wood paneling where I enter and exit the bench.  We go down the steps behind the courtroom and into the jury deliberation room.

In the jury deliberation room, we talk about coffee, the refrigerator and the microwave, where the restrooms are located, the need for jurors to wear their identification badges while in the courthouse, use of the telephone and other practical things.  I explain why I don’t allow jurors to ask questions of witnesses during the trial whether orally or in writing.  We then proceed single file into the courtroom through the “jury’s door” just as they would go if trial were in session.

Colleen, our courtroom deputy supervisor, sits in judge's chair on the bench.  She shows the"panic alarm" and other "secrets" to prospective jurors while I provide the narrative.

Colleen, our courtroom deputy supervisor, sits in the judge’s chair on the bench. She shows the”panic alarm” and other “secrets” to prospective jurors while I provide the narrative.  Every prospective panel member goes onto the judge’s bench.

During all this time, I provide a running narrative of what the jurors are seeing and why they are seeing it.  I try to keep the talk light, and humorous but informative.  My mission is to make sure that when jury selection and the trial begin that the jurors are concentrating on important stuff rather than their physical surroundings.

In short, that’s how I do a jury orientation.  Is it worth the time and effort?   I know this, after I discharge jurors following the trial, I meet with them privately.  I have conducted these interviews for every jury trial I have ever conducted over the last 26 years or so.  I always ask how I could do a better job.   Almost without exception, jurors tell me that the “walk about” was the highlight and I should never drop it.  They say it reassured them, helped them understand and visualize the process and made them feel comfortable.

RGK

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