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Tuesday, May 24, 2011

Writing About Juries? Don’t Make These Gaffes

I want to nitpick one of my favorite shows, The Good Wife, again. A couple gaffes with jury scenes really threw me out of the moment recently. It seems that most people who write about juries have never actually seen jury selection or how bailiffs handle juries, because I see lots of stuff that’s flat out wrong when I read or watch jury scenes. Here are two things not to do: 

Jury selection: When the lawyers do jury selection, they have the opportunity to ask questions of jurors. Then they get to agree with the juror being seated or challenge the juror. What will (probably – I won’t say never) not happen is that the lawyers object to jurors in front o of the jury pool. This happens after the questions (voir dire) are asked and the jury is sent outside. Prospective jurors are sent to the hallway or a room away from the lawyers and judge.

Then the judge will go through the list, something like this:

Judge: Juror number 1.

Plaintiff’s lawyer: Accept.

Defense lawyer: Strike. (That’s a peremptory challenge and the lawyers will each get 2 – 3, sometimes more – they have to use them carefully).

Judge: Juror number 2.

Plaintiff’s lawyer: Challenge for cause

[Argument ensues as to whether there is cause to strike the juror for bias. The juror could be called in to be asked more questions. Then the judge will rule. If the juror is stricken for cause, the lawyer doesn’t have to use up one of those precious peremptory challenges].

Once the lawyers go through the whole list and have 6 or 12 jurors and the alternates picked, the judge will ask if the lawyers want to make any back-strikes. That means they can use up the rest of their peremptory challenges. If any more jurors are stricken, the judge then asks the lawyers about the next juror in the pool.

When the jury is picked, the judge calls the pool back inside, calls up the jurors who were picked, and thanks the rest for their service. In some jurisdictions, the remaining jurors are excused for the day. In some, they’ll be sent back to the jury pool room to see if they get picked for another jury.

In The Good Wife, it would have been easy to fix the problem. Show the juror answering, then cut to the scene where the lawyers are objecting. Simple.

Communications in front of jurors: The writers also showed a scene where a lawyer, accidentally on purpose, was on his cell phone in the rest room talking about the case when a juror was in there with him. Turns out, two jurors were in there, but that’s another story. I’ve never seen this happen and, at least where I practice, it couldn’t happen. Jurors are usually escorted to/from the restrooms by a bailiff, who stands outside and shoos everyone away while they’re in there to avoid just this sort of thing. If the lawyer does see a juror in the restroom, they are supposed to stay far away. Any contact with a juror, even a “hello” in the elevator, has to be reported to the judge.

I don’t know how the writers would fix that problem other than to delay the trial another way. That storyline was improbable, to say the least.

If you’re writing about a jury trial, my best recommendation is go down to your local courthouse and watch one. It’s good experience and will give you the realism you need for your story. Don’t use television to get legal information for your stories. It’s usually wrong.


Gina said...

My husband is just finishing law school (after a criminal justice undergrad) and is starting his clinic work with the state prosecutor, and he can't even watch courtroom dramas anymore because of stuff like this!

Donna Ballman said...

It's definitely hard, Gina. The Good Wife is pretty good about this stuff, so I do find it watchable. There are some shows I've watched for about 15 minutes before I had to turn them off because they were so far off the deep end (and then I blog about them).

Angela said...

I just want to say that I love your posts!!!

Donna Ballman said...

Thanks so much Angela! I'm so glad you enjoy them. Let me know if there's ever anything you think I should cover.

DukTape said...

Thanks, Donna. I doubt I'll ever write about jury selection, but if I do, I know whose blog to read.

Donna Ballman said...

Thanks Duk! Glad you enjoyed it.

Sandy said...

Hi Donna! I just read your comment on my blog about atalas in your yard in Davie...please email me at (sandykoi2009 at gmail dot com)!! I just published a new page with stats on the atala activity...so Broward Co has one more than on the table.
Would like to get some other data. Thanks! Sandy

Jill said...

When I've been called to jury duty, we were not sent out of the room after questions, and the attorneys "thanked and excused" jurors directly after the questions. This has occurred in both civil and criminal cases. (At the times I was called, I worked in insurance as an underwriter - apparently almost as certain to disqualify me as being a police officer!)

Donna Ballman said...

Interesting Jill. Did the lawyers try to excuse anyone for cause? If so, did they talk about that in front of you? What state are you in? Maybe it's a state difference. I guess it doesn't matter much for peremptory challenges because the juror is off automatically if the lawyers make one, but for cause challenges the juror would know who objected to them if they end up staying. I suspect that would make for an awkward trial.