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Good Morning class. Today is the first day in our survey course entitled “Some of the law you might want to know to really enjoy Fitzmas”. This is a seminar course and I am sure you will learn far more from the comments in the threads than anything I could have to say, but isn’t that half the fun?

Today we will begin by discussing the phases of the trial. This is a jury trial which is the most formal and formulaic type of trial, because great trouble is taken to keep extraneous, confusing and misleading or distracting information out of the jury’s hearing and sight. Consequently a great deal of time is spent at “sidebar” conferences, which are conferences held with the lawyers and judge and the court reporter all huddled together at the bench whispering so the jury (and the rest of the courtroom) cannot hear what is being said.

Now there is no reason that the rest of the courtroom cannot or should not hear most of these arguments, it’s just the whispering so the jury won’t hear that prevents it. Judge Walton has already demonstrated that he believes the public has the right to know anything that is not privileged, classified or otherwise a secret, so instead of many bench or sidebar conferences, we may see the jury being sent out of the courtroom many times when the lawyers want to argue a point. This means the rest of us can hear the arguments. Yeah. This also slows down the pace of the trial, a lot. Booh.

Voir Dire

After a couple of days of great confusion on this point (because the orders on the docket sheet conflicted with the official court calendar), I have nailed down that jury selection will commence on January 16th. This is the first stage of the trial. In most federal trials the questioning of the potential jurors, also know as voir dire—which means “speak the truth”, is done by the judge based upon questions submitted by lawyers for both sides.

I checked the docket sheet for U.S. v. Libby, the attorneys for each side have already submitted their proposed voir dire questions to Judge Walton. In most state court systems, the lawyers ask the questions on voir dire and this is a powerful tool because you can vary your questions a bit and find out unexpected nuggets of information that may help you to target your approach to sway that juror, it is also a golden opportunity for each lawyer to begin to build rapport with the jurors. Consequently, lawyers in federal court often try to prevail upon the judge to allow them at least SOME direct questioning of the jurors, and judges often allow it.

U.S. District Court Judges have a handbook called the Benchbook for U. S. District Court Judges, which gives them advice on how to handle various things that can come up in the course of the trial. This is what it says about how the judge should handle the voir dire questioning of the jurors:

If the court conducts the entire examination, it should require counsel to submit proposed voir dire questions before trial to permit the court to incorporate additional questions at the appropriate places in this outline.

1. Have the jury panel sworn.
2. Explain to the jury panel that the purpose of the voir dire examination is:
(a) to enable the court to determine whether or not any prospective juror should be excused for cause;
(b) to enable counsel for the parties to exercise their individual judgment with respect to peremptory challenges — that is, challenges for which no reason need be given.
3. Explain to prospective jurors that presenting the evidence is expected to take __ days, and ask if this presents a special problem to any of them.
4. Read or summarize the indictment.
5. Ask if any member of the panel has heard or read anything about the case.
6. Ask counsel for the government to introduce himself or herself and counsel associated in the trial, as well as all the witnesses who will testify on the government’s presentation of its case in chief. Ask if the jurors:
(a) know any of these persons;
(b) had any business dealing with them or were represented by them or members of their law firms;
(c) had any other similar relationship or business connection with any of them.
7. Ask counsel for each defendant to introduce himself or herself and indicate any witnesses that defendant may choose to call. Ask if the jurors:
(a) know any of these persons;
(b) had any business dealing with them or were represented by them or members of their law firms;
(c) had any other similar relationship or business connection with any of them.
8. Ask prospective jurors:
(a) Have you ever served as a juror in a criminal or a civil case or as a member of a grand jury in either a federal or state court?
(b) Have you, any member of your family, or any close friend ever been employed by a law enforcement agency?
(c) If you answer yes to [either of] the following question[s], or if you do not understand the question[s], please come forward, be seated in the well of the courtroom, and be prepared to discuss your answer with the court and counsel at the bench.

    (1) Have you ever been involved, in any court, in a criminal matter that concerned yourself, any member of your family, or a close friend either as a defendant, a witness, or a victim?
    (2) [Only if the charged crime relates to illegal drugs or narcotics, ask:]
    Have you had any experience involving yourself, any member of your family, or any close friend that relates to the use or possession of illegal drugs or narcotics?

(d) If you are selected to sit on this case, will you be able to render a verdict solely on the evidence presented at the trial and in the context of the law as I will give it to you in my instructions, disregarding any other ideas, notions, or beliefs about the law that you may have encountered in reaching your verdict?
(e) Is there any member of the panel who has any special disability or problem that would make serving as a member of this jury difficult or impossible?
[At this point, if the court is conducting the entire examination, it should ask those questions suggested by counsel that in the opinion of the court are appropriate.]
(f) Having heard the questions put to you by the court, does any other reason suggest itself to you as to why you could not sit on this jury and render a fair verdict based on the evidence presented to you and in the context of the court’s instructions to you on the law?
9. If appropriate, permit counsel to conduct additional direct voir dire examination, subject to such time and subject matter limitations as the court deems proper, or state to counsel that if there are additional questions that should have been asked or were overlooked, counsel may approach the bench and discuss them with the court.

In big cases and in a case where there has been a great deal of pre-trial publicity and there is a fear that it will be hard to find a sufficient number of unbiased jurors, the voir dire process is often done in several rounds beginning with a huge pool or pools of prospective jurors, called the venire, and winnowing down to more manageable numbers for the final questioning. In those cases they begin by having the veniremen fill out a questionnaire designed to weed out those jurors who would be disqualified “for cause”. Cause can be a number of things, but the easiest example would be if, by coincidence, the computer had included in this pool the brother of the accused, or of another participant in the trial.

I have worked on a couple of cases like that. When I was law student I worked on one where the pool was so large and the “for cause” objections so numerous, that they had the potential jurors fill out these questionnaires weeks in advance and then hired a bunch of law students to code the replies and create a data base that ranked jurors by level of potentially objectionable responses. In this way the jurors were ranked on a continuum from clearly disqualified, through iffy, all the way to “both sides will want this juror”.

Strangely, considering all the media hoopla involved in the investigation, the word on the street is that jury selection is only expected to take a couple/few days.

The current Scheduling Order calls for Opening Statements to begin “immediately thereafter”, so we could be looking at Opening Statements on January 22nd, or even sooner.

Although I have been called for jury duty, as a lawyer, I always get disqualified and have never sat on a jury. I have had the experience of being in front of both Petit (trial) Juries and Grand Juries, but don’t have a clue what it is like to be a juror.

Have any of you sat on a jury? What was it like?

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