Subsection 1.6.  The Operation of Selecting the Jury

 

After two days of motions and stipulations, the selection of jury finally was underway. The purpose of the selection of jurors was to use the preliminary questioning or voir dire to discover or develop a feel for the attitude, tendency, bias or even prejudice of a juror candidate to determine if this candidate would be favorable to his case. The selection of a jury is a big topic. For example, in the Simpson case, the lawyers were afraid that their experience was inadequate and hired some jury consultants to help out. As for the run of the mill cases, the experience and instincts of the lawyer will just have to do.

 

In the courtroom of judge Collins, the little universe belonged to him. All the rules were as he decided. He liked to control the entire situation. In the past, when the jury was selected, excepting the judge who asked preliminary questions, the attorneys for both sides could also ask questions within some limits and establish some direct contact with the jurors. Judge Collins took away such opportunity. The lawyers could propose some questions to the judge, but they would only be asked by judge Collins himself.

 

There is an American movie called Runaway Jury, based on the book with the same title by novelist John Grisham. The reader who has a special interest in the jury will find this movie quite meaningful.

 

In a trial shown in a television series or a trial shown by live broadcast, the jury is already selected. We do not see the actual selection. Therefore, we will use the process of jury selection under judge Collins to take an inside look. Judge Collins has his own rather innovative approach, but it is still not too far apart from that of other judges.

 

On the day of selection, when the first group or panel of thirty one potential jurors (the second group of fifty persons waited in the jury waiting room) entered the courtroom like a procession, the attorneys and clients of both side would all stand up to show respect.  After all, under the American system, the jury voluntarily sacrifice their energy and time to defend the cause of justice, so the judge gave them special respect and consideration.

 

Before the court opened, the attorneys received an alphabetic list of potential jurors.  After the 31 candidates occupied all the empty seats in the courtroom, judge Collins assigned to each of them a number and seat location. To be fair, the seat number was decided at random just before the court opened.  The potential jurors 1 to 14 (12 jurors plus 2 alternates) sat by the wall in the top row of the jury box located on the left side (or the right) of the courtroom.  Candidates 15 to 31 sat in the general area in the back of the courtroom.

 

After all the seats were reorganized and occupied, Mr. Zhang then looked carefully at the 31 potential jurors. What he saw was a virtual miniature United Nations, that is, "The sparrow may be small, but has all the organs!".

 

Among the first group of thirty one potential jurors, those born and raised in this country were not just whites, but also African Americans, Hispanics, Asians and Middle Easterners. To them were added immigrants from different parts of the world. Besides the diversity of race and nationalities, the ages and professions of the thirty one individuals were also different. There were white and blue color workers, and also unemployed.  In short, the group reflected correctly the residents of an international city such as San Francisco.

 

While Mr. Zhang was still looking around, judge Collins had already welcomed the jurors. He introduced the case and said that the trial might take three weeks.  He asked the potential jurors numbers 1 to 14 if anyone among them for some reason could not serve as jurors. In the end, number 7 and number 10 could not qualify and were permitted to leave by the judge. Their vacancies were filled by candidates number 15 and  number 16.

So Mr. Zhang revised his own notes:

 

　　      old 7(21) cook changed to 15(12)investor

　　　   old 10(19) mailman changed to 18(6) psychologist 

 

Judge Collins continued to ask each of the potential jurors questions in order to understand about each the background, English proficiency level, profession, the length of time living in San Francisco, and the number of children, if any. Then he raised some common questions such as:  Have you been a juror before? Did you arrive at a verdict?  Do you have experience of being a defendant in a civil lawsuit? Do you feel that the dispute of brothers over property is different from the general breach of contract commercial case... Mr. Zhang had proposed a question:  in a dispute over real property, is documentary evidence particularly important?  But this question was rejected by judge Collins.

 

During the question and answer period, the attorneys and their assistants were listening and observing while recording their impressions. If we can see Mr. Zhang's record on his self- made seat chart, we can tell what Mr. Zhang observed about the various candidates and his subjective impression, such as:

 

　　 (3)27 housewife, 2 children, English not good, minus 2 points

        4(19) realer, seems sharp, plus 2 points

        11(17) social worker  zero point

 

They mean:

        -The candidate sitting in seat 3 in the jury box (number 27 on juror list) is a housewife with             2 children...

        -The candidate sitting in seat 4 in the jury box (number 19 on juror list) is a realter...

        -The candidate sitting in seat 11 (number 17 on juror list) is a social worker... 

 

In addition, because the judge had permitted jurors number 7 and 10 to depart, Mr. Zhang had to revise his own name list.

　　　

      -The old number 7 seat (number 21 on list) cook changed to number 15 seat (number 12 on            juror list) investor... Plus 3 points 

      -The old number 10 seat (number 19 on list) mailman changed to number 16 seat (number 6            on juror list) psychologist... Plus 2 points

 

Subsection 1.7.  Kick out the Unfavorable Candidates 

 

After the judge had completed the questions and answers with the 14 candidates in the juror box, the judge and the lawyers left temporarily the courtroom and returned to the private chamber of judge Collins to discuss each of the 14 persons:

 

When the jury is being selected, the lawyer of each side has the two kinds of right to challenge a certain potential juror: the first kind is peremptory challenge, to remove a particular potential juror from the jury, but this kind of challenge can only be invoked 6 times. The second kind is challenge for cause. If the reason is adequate, the lawyer can invoke the challenge unlimited number of times.

 

In the past, the selection and challenge of potential jurors were done publicly in court.  In recent years, some judges (such as judge Collins) feel that to challenge in public view may cause the potential jurors discomfort; when a potential juror is removed, he may feel embarrassed, and changing persons like musical chairs create also confusion. So judge Collins have decided to move the challenge operation to his own private chamber.

　　　

When a jury is selected, each trial judge may have his own practice. The operation of judge Collins is a rather efficient and orderly model.

　　　

After the judge and the attorneys became seated in the judge's private chamber, the judge pointed to the jury box seating chart and said, "No. 1.  Mr. Zhang.  You start".  Mr. Zhang said, "I pass" (meaning no objection).  Mr. Brown looked at his notes.  Number 1 said that he had been  accused before and continued to be upset about it.  It appeared he would sympathize with Little Shi and disfavored Big Brother.  Mr. Brown then said, "I challenge".  No 1 was then removed.

 

The judge continued. "Number. 2, Mr. Brown. Your turn". Brown said, "I pass". Mr. Zhang looked at his notes.  Number 2 was a retired Chinese immigrant from an older generation and could still retain the respect for older brother tradition.  Mr. Zhang therefore said, "I challenge".  Number 2 was removed.

 

When it came to Number 8, he was a Hispanics young man.  He responded to questions earlier and indicated that he disfavored lawsuits between brothers. The judge and the lawyers all agreed that he had too deep a preconceived notion;  he was allowed to be removed for cause.

 

The result of selecting the first panel of 14 person was: 7 remained; 7 were removed. Each lawyer had used up three peremptory challenges.

 

Judge Collins returned to the courtroom and announced to all the people:  Number 1, number 2, number 8, number 15, (the old number 7, replaced by the new 15(12) investor).  Number 16 (the old 10, replaced by the new 16(6) psychologist.  Number 13, number 14 are removed.  The seven vacant seats were replaced in successive order by the potential jurors seated in the courtroom's rear general area.

 

After judge Collins completed question and answer with the 7 new replacements, he retired again to the private chamber where he continued the screening process with the attorneys.  This time four persons remained; three were removed.  Mr. Zhang used two more peremptory challenges.

 

By then, eleven jurors were already selected. Three new candidates filled in. Mr. Zhang looked at the first one. She was a Chinese housewife with marginal English proficiency and no profession, not an idea choice.  But he was reluctant to part with his last peremptory challenge so he said, "Pass". Unexpectedly Mr. Brown passed the next two candidates. With that development, the approved candidates already reached the required 14 persons. The selection of the jury was completed.  Mr. Zhang wasted a peremptory challenge;  he never used it.

 

Subsection 1.8.  Appraising the Operation of the Selection of the Jury

 

From the above introduction, the readers should get the idea that the selection of a jury is an important burden on a lawyer (the selection of a jury foreman is not included here because it is another topic) because the lawyer has to exert great effort to design questions that can lead to information about the juror's tendency, and also concentrate on observing each potential juror's answer and facial expression, and then make a spur of the moment decision. Truthfully, all this effort by the lawyer does not seem to pay off.  In other words, if the United States adopt the purely at random method of jury selection (such as in Hong Kong), the jury selected is not any less in quality.

 

First, the lawyer only knows about each potential juror superficially, relying on some piecemeal information and answers to two or three questions; the balance is all speculative, spur of the moment decision.

 

Second, the candidate you like is disliked by the opposite side and removed by challenges;  conversely you will return the favor and remove the person he likes.  After both sides use up the quota of six peremptory challenges, they are canceled out.  The final result is just a draw;  all the effort is in vain.

 

Third, in the past, the lawyer has a right to ask question and get answer with a potential juror directly, hoping to establish some kind of connection and influence. The trend in recent years is that more and more judges are controlling the situation and the pace of litigation, reducing the chance of a lawyer to put on a show. The lawyer is forced to become a well behaved bystander.

 

The task of selection a jury in this dispute between brothers was completed by noon. In the afternoon, the brothers were really going to square off in court.