Come Back With a Warrant
Episode 8: Picked or Played: The Truth About Jury Duty
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Brandon: Call us.
Episode
Brandon: Welcome back to Come Back With a Warrant. This week, we will be talking about jury selection.
Brandon: The most common question I think we get is, "How do I get out of jury duty?" I've heard a lot of answers. A lot of bad answers, a lot of good answers. Getting out of jury duty is not what we are going to be telling people how to do.
Monica: Listen, I am oftentimes very empathetic to people's questions to me, as a defense attorney. But this is the one question that drives me up the wall, because we need jurors.
Brandon: That's right. We need good, fair jurors.
Monica: Yes. And if— not just people that want to be there.
Brandon: Exactly. Because those people are not great.
Monica: No.
Brandon: We'll talk about that.
Monica: Yeah. The pick-me is always the one that I'm like—
Brandon: Mm-hmm. "No, please. Go away."
Monica: Yeah. Not you. The person that's raising their hand too much, not you.
Brandon: Yeah, exactly.
Monica: Yeah. There's always at least one person in the group that's like, "Pick me, pick me."
Brandon: Yeah. Who's excited to be here? That person raises their hand.
Monica: We'll talk about all these things.
Brandon: But the gist is that on today's episode, we're gonna be talking all about juries, jury duty, jury selection, being selected as a juror, being not selected as a juror, and the joy of the experience of jury duty, because we've been given suggestions right up until this episode of ways to get out of jury duty. But the truth of the matter is, we want people to go through jury duty. If it was more enjoyable, that would be great, but it's not. However, the process of being a juror and becoming a juror is rewarding and is enjoyable, because oftentimes, people are put on good juries and good jury panels, and you get to see something interesting.
Monica: Yes. And, you know, it's important to talk about what the purpose and the role of the jury is, and that— for people to understand why it's so important, and why, us as attorneys, we do not want people to be— I mean, it is what it is. You're missing out on work. Your life is put on pause, whether it's for a day or for weeks, and I totally get that, because if I was asked to do that, I would definitely be very inconvenienced. And the $15 an hour, a day, I mean, that they pay you is not comparable.
Brandon: Or you're giving away the goods, Monica. You get paid $15 a day—
Monica: Yes.
Brandon: to be a juror, so don't give away the spoil—
Monica: Collect your money.
Brandon: Don't give away the spoiler. Um, they also give you $15 for meal vouchers at the airport, just so you know. And you're not allowed to use those on alcohol. So, that's a caveat to anybody listening.
Monica: How do we get that?
Brandon: Very important. No, you get that if your flight's delayed too long. It's not fun. And they're not fun vouchers, but it's $15.
Monica: Yeah. You get, like, a cookie.
Brandon: A coffee, yeah.
Monica: Yeah. It's like nothing.
Brandon: No alcohol.
Monica: No.
Brandon: They're very serious about that.
Monica: Yeah. But going back to what we were talking about with jury selection and jury duty, the whole purpose is to find a panel of people that can listen objectively to the facts that are presented by lawyers, the law as it is presented by a judge, and render a verdict for a case that cannot be decided based on the negotiations of some lawyers.
Brandon: Yeah.
Monica: Right? That's pretty much the breakdown of what it means to be a jury, and what we're looking for is reasonable, fair-minded people that can objectively look at the facts, even though they may not want to be there, but say, "Okay, I'm gonna give everybody that's participating in this a fair shot and listen to everything, open and honest, without crazy personal bias or backstory coming into play, and give this person a fair trial." And that's all we ask for as lawyers — that you do that. You're reasonable, you listen, you're objective, you're fair, and you are the type of person that can speak with another group of people, come to a decision, make a decision, and—
Brandon: Yeah. And for that reason, that's why jury selection is kind of a long process, where the judge has an opportunity to ask questions if they wish. Some judges will be like, "Okay, can you be fair? Yes. Okay, lawyers, you can ask your questions." Others will have long voir dire, which is what we call jury selection, and they then will pass the ball to the government, government will do its questioning, and then defense will do its questioning.
Monica: And throughout that process, oftentimes, when it gets more— actually, I wouldn't even say— obviously, it's more prevalent when it's a sensitive topic or a sensitive case. A lot of jurors will get a little emotional or they'll ask to go sidebar so they can talk about their own experiences and why they cannot be fair in this situation, but sometimes, it's just people that have had close experience to something similar, and they're like, "I cannot be here. This is too triggering for me." And that's really the whole point, is to make sure that we don't have people that are going to be triggered on the jury who are deciding the case, based off of their own experience outside of the facts presented to them in the courtroom.
Brandon: It is important to the government, but I think it's more important to the person who's being tried and whose liberty is at stake that that person gets a fair trial from the jury perspective, because there's so many different ways that they could not get a fair trial that's not in the jury's hands, whether it's an unfair judge, or the government's maybe doing — which is not something I commonly experience, but it could happen — is like maybe there are things that are being hidden, or not exposed, or turned over, whatever the case is.
Monica: Mm-hmm.
Brandon: There are so many ways that this person can be at a disadvantage at the trial proceeding, that the least the jury can do is to show up, be honest, and if they cannot be fair, that's totally fine, because that's the whole point. We want to know if you can't be fair or not. So, honestly, that is the answer to the question, but genuinely, you know, like— and you're under oath when you're doing jury selection or you're giving your answers under voir dire with the judge and with the attorneys. You take an oath before answering questions, that you will answer honestly and you're not gonna BS your way.
Monica: Oftentimes, we can see that this person is not being an honest person, or they're saying XYZ, or sometimes there's a disagreement on it. But it's been— I have had experience where it's been very obvious or people sleeping during jury selection.
Brandon: Yeah. And let's kind of— I'm jumping around in order a little bit, but I kinda wanna explain to the people listening, really, the process of jury duty, what it looks like from—
Monica: The juror's perspective.
Brandon: You know, from the juror's perspective and from our perspective. Jurors receive a summons. They show up to court. They go into a big room with a ton of people and are called out in groups that are predetermined by each individual court. A jury can be picked for either a criminal trial or a civil trial. Criminal is where there's somebody's liberty at stake. And when we're talking about civil, we're talking about finances, money involved, things like that. Nobody's going to jail in a civil case is really what I mean.
Brandon: The juries are of different sizes and the panels, meaning the people that come up as a group and are spoken to by the court and by the lawyers, the size is based on the type of case, the complexity of the case. So, for example, if we're talking about a DUI, oftentimes, DUI panels are around 30 people, somewhere between 20 and 30 people, generally, okay? Whereas if it's a homicide, you could have over 100 people in a jury panel. It really just depends.
Brandon: But in that panel, in that group, the group goes before the court and the judge asks a series of questions. The lawyers get to ask a series of questions and it's all about having time and a chance to communicate with the jury because this is the only time that that happens. At no other time during the trial are you communicating with a jury. We are speaking at a jury, as lawyers and the judge, but we are not listening to them or hearing from them at all, really, during the trial, unless there are certain circumstances where there's notes or things like that.
Brandon: So, the panel is being asked questions, usually off of a form by a judge, and those are a series of standard questions that the judge asks every time, and then it's up to the lawyers. And that's where jury selection becomes an art.
Monica: Mm-hmm.
Brandon: The lawyers have the obligation to ask best questions they can to pick the right jurors. And there is no set rhyme or reason for some of the questions that get asked, other than to just figure out which people would be— oh, I guess there is a rhyme or reason because they're figuring out exactly which people would be perfect for that individual jury.
Monica: Yeah. The way I was taught to do jury selection was actually deselection. So, who am I going to disqualify off this jury? And then if I— when I'm left with these people, these are technically the people that answered fairly according to the questions I've asked. So, whenever you ask a question, it's really to cause that person— and if you can't cause them and you feel like maybe they have biases and they're not really being fully honest and they're talking about experiences but they're saying they can set it aside, those are usually the chances where you can use peremptory challenges.
Brandon: The part of selection where you get onto, um— when you get past the lawyers' questions becomes the selection, the actual selection process.
Monica: Right.
Brandon: And that's where you're given— each side is given challenges.
Monica: Right.
Brandon: There are different types of challenges, which we can or we don't have to get into, but the challenges are what allows a lawyer to strike a juror from the panel. There are tons of different reasons why jurors can get stricken, but there has to be a valid reason.
Monica: Right.
Brandon: And so, that valid reason comes out during their answers to questions, so your objective is to hopefully — I mean, not disqualify the whole panel. Sometimes it happens and we call that busting a panel, or not enough jurors are leftover so we have to start over, but the goal is then to get that person off of the jury based off of the answer they gave to your questions.
Monica: So it's very strategic in a way because you're trying to get the best juror for your client.
Brandon: Right.
Monica: And that's why — I mean, sometimes there are agreements, like I said, someone's sleeping, it's like kind of objective ways to disqualify someone. Obviously if someone has an appointment, all these things, like there's so many different—
Brandon: Right. They're—
Monica: ways to get off the—
Brandon: And they're pre-qualifying questions that the judge asks about conflicts of different kinds that knock out jurors right away.
Monica: Right.
Brandon: And those don't really become— when the challenges occur, sometimes they are contested by the parties and if they are contested then that's where the lawful reasons—
Monica: Exactly.
Brandon: come into play, why it really matters because it is a strategy ultimately who you keep and who you get rid of, and the other party is not necessarily interested in the same people that you are. They may have reasons that they do like or that they don't like an individual that's in the jury panel.
Monica: Yeah, and kind of the standard one I think of is like law enforcement. A lot of defense attorneys won't want law enforcement on their panels just like kind of a cursory thing, you know? And then you got — investigate a little more and then you're like, "Okay, like, what was your involvement? How long were you working there?" Or whatever, all these things, "Which department? Do you know any of the officers in this case?" So there's so many different ways someone can be biased and that could be something that the other side will try to cure in a way when they go up there and talk to that same juror after discovering that information and then they're like, "But you will not be able — you will put that aside and you won't bring that into this case." Like, "You will only decide this case based off the facts." And if someone says yes to that question, that's called being rehabbed, rehabilitated.
Monica: Then at that point you, you know, you have to kind of make your argument according to what their initial answer was and that's when it becomes adversarial and that's why it becomes strategic because, even though we do want — yes, we want everybody there to be a fair juror, we do at the same time still want someone that's going to be completely objective or provide that sense of like stern— like they're set in their values kind of. Like, it's not like they're gonna be wishy-washy or they're gonna follow someone because that person is making that claim or that person is more loud or has more of a leadership role in their lives and then that translates over into the jury room.
Monica: So all of those things are so important to keep in mind when you're interacting with the juror, and so that comes into play in the strategy, in the legal arguments. Their body language is often something that's discussed as well. Like, if you need the record to reflect that, you need to obviously make it known in that moment.
Brandon: Mm-hmm.
Monica: So jury selection is such an important part of trial and the legal process and a lot of people who get the summons don't realize the gravity of it until after trial. And like you said, a lot of people feel like it's such a rewarding process in the system but they don't know that until after because they're like, "Wow, I didn't realize how important jury selection is." Or not jury selection, being a juror is. Like that is such an important civic duty. And there are people that end up being jurors like 3, 4 times on panels and I find that those people who have been exposed to the system are more cooperative throughout jury selection because they understand how important it is to be there, whether it's a civil or criminal case. Obviously I think it's more important for a criminal, it's someone's liberty at stake, but regardless, you're needed there because you're the person that's deciding the case.
Brandon: And people don't understand how intricate jury selection can be and I'll take it from the perspective of being a prosecutor and sitting there at the table with another attorney from the state attorney's office and while I'm asking questions, that person is running criminal background checks on every single person that's in the jury panel. They're taking notes of every statement that's said or body language tic that's picked up. They are doing everything that the person asking questions can't do so that way when it comes down to let's review and challenge and let's — do we have a good reason to challenge somebody? Do we have a reason to keep somebody and now we need to defend against the challenge from the other side, that's really, really important and you have another person there doing it with you.
Brandon: You talk about high-stake civil trials. High-stake civil trials will have multiple lawyers in the courtroom that are analyzing the jury from different ways. They will be reviewing their background checks with public records or with software that they have to review background checks. They will be putting their answers into AI software to generate what type of person this person is. What I know certain civil firms do is while a jury is being picked, they will put all of the information they're getting from that juror into an AI software and ultimately determine whether or not that juror is gonna be good for them—
Monica: Oh.
Brandon: and which of the jurors will be best based on the information that they put into the AI software. The picking of a jury when you're talking about cases that are tens of millions of dollars or more, they will do everything they can with all the technology and financial resources to pick the best jury.
Monica: So true.
Brandon: And it's, you know, it can be as simple as one lawyer without any backup that's picking a jury based on what they're hearing standing at that podium and they're not using AI all the way up to people that are putting all this information in real time and trying to crack that jury panel for what is gonna be the best.
Monica: Having a second chair throughout jury selection is so important because it's so hard to be present. I think a big part of trial is being present, especially during jury selection when you're having a dialogue with the jurors, and like you said, it's the only opportunity for you to be able to really do that. By the way, I think everyone uses, every attorney I've ever seen, I've never seen an attorney not use a chart during—
Brandon: Yeah. The charts are given out—
Monica: They're huge.
Brandon: The court gives out, at least in every criminal trial I've ever been in—
Monica: And civil.
Brandon: the court will give out a diagram to the parties that has the jurors that are coming in—
Monica: Yeah.
Brandon: on that panel, which is great because it is a visual representation of what is going on and it helps you keep track of getting in information from people.
Monica: Exactly. And that's what I use— that and my questions are all I have up there. So, I'm not really taking notes. I'm there back and forth with my jurors, I was gonna say my clients, and the second chair, the other lawyer that's handling the case with me is the one that's taking all the notes, like you said, and that's so important for arguments later for you to be able to say, "This is what was said." Because you're not gonna be able to do that standing alone. If you have a second lawyer to do that with you, or even an intern or something to just be like, "Okay, take notes on everything" because you really need to be able to do that.
Monica: And speaking on civil cases, 'cause I did do civil jury trials at a point in my career, I was defending insurance companies and we would look up their claim history. Like, did they put in claims with insurance before or are they homeowners? You know, we would look into, 'cause it was first-party practice where we were defending the insurance company and homeowner's claims, so we would wanna know what is their — how involved have they been with this part of the process or are they just, like, insured people and have gotten, like, successful claims or whatever. Like, what is the process of that? Some people don't even remember the outcome of that stuff, so then you have to look into it and figure it out and then you talk to them about it.
Monica: So there's definitely an aspect of utilizing resources not just like, you know, that you mentioned the government and doing background checks or, like, also social media checks. You know?
Brandon: Right.
Monica: There's so many different ways to use resources and to check and to see if these people are involved in certain things that maybe are related to the case. High-profile cases.
Brandon: Mm-hmm.
Monica: Jury selection's huge for high-profile cases because you wanna know, did this person hear about this in the news or the media and do they have an opinion on it? Would they be able to render a verdict based off of the things that are presented in the courtroom and not the things that they've heard outside the courtroom? Which is — that's a huge thing, you know. That's a huge thing. So that's something that can really get people to have, like, a jury misconduct type of thing, you know, where they are not being fully honest about it from the jump and then later it's discovered this person researched on their phone, you know, or did something that they weren't supposed to do and then they found out this piece of information that was not — maybe it was excluded in the trial, maybe it wasn't real or an actual fact, and then they use that against one party.
Monica: And then that's a serious issue because that's stuff that brings the case back on appeal.
Brandon: Right.
Monica: And it's also something that someone would not really know about until it's discovered through that specific juror or through someone that juror told someone else or something. So, it's really such a big deal to be honest and to show up, even if you don't wanna be there. It's so important because juries are really the way we get to the results of cases that cannot be agreed upon in court, and it always comes down to a factual dispute. It's always a factual dispute. That's why we're in trial. It's because one party thinks that it happened this way and the other party thinks it happened that way, and they're not the same stories or they're not the same perspectives, and we need the jurors to decide if this is a crime, for criminal cases, or not.
Brandon: Mm-hmm.
Monica: And which crime is it on the verdict form, because sometimes there's lessers in there.
Brandon: Mm-hmm.
Monica: So, do you wanna talk about like what voir dire means?
Brandon: Well, sure. I mean, you said it a little, you mentioned the term earlier but voir dire is Latin—
Monica: Yeah.
Brandon: to speak the truth. And the whole purpose of jury selection is just getting the truth out.
Monica: Exactly.
Brandon: The thing that, or one thing that I know and I've seen come up is jurors — you talked about juror misconduct, but jurors getting in trouble—
Monica: Mm-hmm.
Brandon: for lying.
Monica: Mm-hmm.
Brandon: Or for not showing up on time. And the courts are serious about holding people—
Monica: Yeah.
Brandon: to their obligations. The courts will — somebody will get in trouble because you can throw off the process of a trial, and trials are very expensive for the court to put forward. The security involved, the jury selection, the judge being there, the different lawyers being there, it is an expensive process to have a trial. And if you are messing up that process because you're lying or you really wanna be on the jury and you have some ulterior motives, causes a lot of problems, and it is why the courts are very quick to hold a juror in contempt and put a juror in jail. You saw jurors in Palm Beach County go to—
Monica: Yeah.
Brandon: jail for not showing up on time or lying. I mean, that happens.
Monica: Slept in.
Brandon: Yeah. Slept in too late. It happens. Went to jail because he slept in too late—
Monica: Yeah.
Brandon: and missed jury duty. So—
Monica: Yeah. It's extreme and it's not—
Brandon: Yeah.
Monica: I don't think necessary, but yes, that is a possibility.
Brandon: Yeah, because it's a summons. You're required to be there and if you're not—
Monica: Right.
Brandon: if you ignore a summons, you are subjecting yourself to being held in contempt by that court and the judge can ask you, "Why weren't you there?" And if you don't have a legitimate reason, which actually technically if it's not a legal reason, it's not a legit reason, but I think most judges would probably give grace if someone was at a doctor's appointment or something.
Monica: Yeah, a lot of, most judges give grace to honesty, to be completely—
Brandon: Yeah.
Monica: candid. I mean, if you're — that person I think probably was honest and said they slept in, and they got no grace, but I think judges in general are—
Brandon: Yeah.
Monica: more inclined to give people grace if they're being honest about the situation.
Brandon: But this goes for whether or not you're a juror or you're someone that has to be at court. Give yourself plenty of time to get there.
Monica: Yes.
Brandon: Because judges are real quick to call people out on their excuses for not showing up on time.
Monica: Yes. And, you know, it sucks because sometimes — it's so inconsistent. Sometimes you'll be called for jury duty and you'll wait for hours before you actually go upstairs, and then other times you report to jury duty and they're like, "All right, bring 'em up," and it's 8:00 AM and you're like, "Okay." Yeah. "I didn't even have my coffee yet."
Monica: But either way, make sure you're there on time and according to plan because I remember also during COVID, after COVID, there were — there was a stop to jury trials and when we were starting to get back into it, it was really hard to get jurors and, you know, it was like either it was a busted panel, not enough jurors would show up. It was always something because there was such a shortage of jurors at the time because of like, whether it was health reasons or they were — I know they were not sending as many summons out—
Brandon: Mm-hmm.
Monica: at the time because of, you know, we needed space and keep people out 6 feet distance and all the things. But that also put a stop to jury trials in general. So, people were then held in custody longer. So, it just really is a trickle effect on the entire system, and the jurors and regular people who receive summons, they don't think that far ahead. They don't know. They're just like, "Oh, I'm so inconvenienced with my life, you know, being put on hold," or whatever, all these things. Which, you know, oftentimes if you have a trip or something planned that the court will not make you stay unless it's, you know—
Brandon: No. No. If you give an honest answer during jury selection and it shows that you have a genuine conflict—
Monica: Yeah.
Brandon: the courts are inclined to let you—
Monica: Yeah.
Brandon: out of jury duty if you have a real conflict.
Monica: But you still have to show up.
Brandon: Right. You have to show up—
Monica: So—
Brandon: and tell them that that conflict exists.
Monica: Exactly.
Brandon: And it needs to be legitimate. You can't just show up and think, you know, "I can get out of jury duty by" — the most common ways people try to get out of jury duty is with not being able to understand the language. So like having an accent or English as a second language speakers try to get out of it that way. That's one that I've seen. People trying to say outlandish and racist things is always the suggestion that you hear to get out of jury duty. That's not gonna do anything but make this situation bad and everybody in the courtroom will look at you—
Monica: Yeah.
Brandon: and it will become a problem. The way — or you say that, you know, you have a job and you need to get out of it that way, because you have to be at work. Those are the most common ways you see people try to get out of it, right?
Monica: Yeah. I would say. Yeah.
Brandon: But the genuine — everybody's got to work, you know, for the most part. Everybody has got somewhere else they would rather be, but this is a civic duty that is extremely important and there are a lot of people that are counting on it.
Monica: Yeah.
Brandon: And there are so, so many trials. I don't think people realize how many trials there are. I'm set on a trial docket at the beginning of September and I was sent an email by the court that lists all of the cases that are set for trial on that docket, and there's over 60 cases—
Monica: Mm-hmm.
Brandon: set for trial. Obviously not all 60 will go, but that is 60 jury panels that are needed—
Monica: Mm-hmm.
Brandon: for that one courtroom.
Monica: Yeah.
Brandon: And that's not something that's exclusive to just one courtroom in the courthouse. There are a lot of different courtrooms that all need juries and all go into trial, so people do need to show up. It's important and you're doing the right thing for everybody else that you are co-citizens with.
Monica: Yeah. I'm often not, like, very empathetic or sympathetic to that question when people ask me. I get kind of annoyed, honestly, when people are like, "How do I get out of jury duty?" I'm like, "That is so annoying. Like, you are what's wrong with the world." I know that's like everybody out there.
Brandon: That's funny and everybody says, "We don't want to do jury duty."
Monica: Yeah. But also an important aspect of jury duty, which is the part I am sympathetic to, is the person who's selected as the alternate.
Brandon: Oh.
Monica: Yeah. Because this person really, oftentimes, is someone that's taking notes, is very present throughout the trial.
Brandon: So explain, explain that. Explain how many, you know, what—
Monica: So I mean, in general—
Brandon: An every juror — explain how you get to be the alternate.
Monica: Every juror — so just in case we need an extra juror, so you know, we have all of our people selected and then we get an extra one or 2, depending on the type of case it is, and we get an alternate juror in case somebody doesn't show up, somebody gets sick, somebody gets into a car accident. Life happens and we, as like the people in the courtroom, know that, the judge and the attorney, so we need to have alternates. And sometimes you can waive having an alternate if you don't have enough jurors, but oftentimes it's ideal to have an alternate for everybody's sake.
Monica: So there's usually somebody on the panel that does not know that they are the alternate, and what happens is before that jury goes back to deliberate, we disclose that this is the person who is the alternate and you have to go home and you're not gonna be participating in deliberations. So that is something that I oftentimes feel really bad, especially if it's like more than a one-day trial.
Brandon: Right.
Monica: Because we really—
Brandon: If they have to come back and they've sat there for, in certain cases, weeks of testimony only to be told, "You're not actually gonna decide the case," it's tough, but you don't know what's gonna happen to the other jurors, right? If we're talking about a misdemeanor case, for example, there are 6 jurors that are gonna be deciding the case, but 7, sometimes 8, are sat down in the panel and one or 2 of those people are not going to be deliberating the case. If something happens to one of those other jurors, then that person is deliberating it and it's like there was nothing that ever happened.
Brandon: But for the person that is the alternate — and you're right. Oftentimes, the alternate is paying such great attention, taking great notes, and they always seem to be on whatever side I'm on.
Monica: Yeah.
Brandon: Right? The alternate's nodding along with me— and they're saying like, "That lawyer really gets what he's talking about."
Monica: Yeah. "I believe what that person's saying."
Brandon: And then it's always like, "Well"—
Monica: Yeah.
Brandon: "Juror 7-1, Miss Sally Green, thank you very much. We don't actually need you." And you're like, "Oh." There is a judge here in Palm Beach County that — she's so funny. When she dismissed the alternate, she said, "Always the bridesmaid but never the bride."
Monica: Like, "Oh, my."
Brandon: That's pretty funny. That could—
Monica: You don't know.
Brandon: That might hit her where it hurts. You never know.
Monica: But, um, it does suck to be an alternate. I can only imagine. Especially if you're super engaged or interested in the case or you're excited to be there after the start of the case and you've invested a lot of time, energy, and money because you've taken time off of your work or your, you know, you have your family that you can't be with or whatever the case is, and now you have to sit in a trial and not decide it, which is, like, a complete waste of time.
Monica: So, but it's essential because — and that's part of the reason why you don't know, because if people knew that they were alternates, they would definitely not be paying attention. So, that's kind of the purpose and it sucks, but that's really the only way the system can fill in for the jurors who might not show up or get sick or whatever the case is.
Brandon: Yeah. I have only been asked to do jury duty once, and I went and sat and got called up for a panel and went into the courtroom and told the judge that I was a lawyer and thought that that would—
Monica: Enough.
Brandon: be good enough to get me knocked off or out of there early and nope—
Monica: Nope.
Brandon: He made me stay the entire day that they did jury selection, and then at the very end, they decided that they did not want me on the panel because I was a lawyer. But it does not matter who you are.
Monica: No.
Brandon: Like, they're—
Monica: I've had lawyers on mine.
Brandon: Yeah.
Monica: They're gonna make you sit there and deal with—
Brandon: But I've had lawyers on my jury. I've selected — I mean, I've been okay with them the other way. Certain cases, yeah.
Monica: Yeah. I mean, I usually don't— to be honest, I don't prefer litigators. The reason being is because I feel like you'll be fixated on, because I know myself. I would hear an objection, I would analyze it.
Brandon: Well, right. I don't want—
Monica: You know what I mean?
Brandon: somebody saying, "Oh, I could have done that opening or closing better." And like—
Monica: Or not even that, but like—
Brandon: Or like, I don't—
Monica: If somebody objects hearsay, it's like, "Is that really hearsay?"
Brandon: Oh.
Monica: You know what I mean?
Brandon: Oh, I get what you're saying.
Monica: Yeah. I would be thinking about, like, the evidence that, like, the legal arguments—
Brandon: Right.
Monica: that are being made, like my lawyer hat would be on for sure. So— Yeah. But would I let that come into play? Probably not, but I would probably be distracted by it. So, I don't usually prefer, like, litigating attorneys, but it is what it is. I've had them, so it just happens.
Brandon: I've had lawyers on my panel for a battery case and it was a simple battery and it was really kind of silly, and the thought process of keeping the lawyer on was, "It's A plus B equals C."
Monica: Yeah.
Brandon: That this is what the elements are of a battery and that's what the law says, follow the law. And I knew the lawyer would follow the law and not just nullify his verdict, just because he disagreed and thought, "This is silly that we're even here," or, "This is stupid that this is the charge." I mean, that happens. You hear of batteries where somebody throws a cup of water on somebody else or somebody pushes somebody else and it's really something minor, the A plus B equals C under the law is that a battery was committed. You want people that will see that and think about that in a linear way.
Monica: Well, it's interesting. You're talking about jury nullification, kind of.
Brandon: Yeah.
Monica: Because that's a power that jurors have that they are not informed about.
Brandon: Right.
Monica: And that's technically illegal.
Brandon: It is not — not illegal. You're not supposed to be — you don't promote that or ask for it—
Monica: Or advocate for it. No. But if defense attorneys could, they probably would.
Brandon: Right. Of course they would. Nullify.
Monica: Nullify, yeah. Which means this is ridiculous or this is going against, like, social values that we have. Like, it depends on what it is. Like sometimes—
Brandon: Jury nullification — it is against the law, we as a jury think this is not something that we're willing to convict this person for.
Monica: Exactly.
Brandon: For whatever reason.
Monica: Right.
Brandon: Whether it's our moral beliefs, whether it's just the way we feel, whether we have a political motivation. There are — whatever it is, that is jury nullifying. They are nullifying the verdict, they are looking at the law and saying, "We're not gonna follow what the law is." And as a defense attorney, you can't ask a jury to do that.
Monica: Right, because you're asking for a verdict not based on the law, which is the point is to ask for a verdict based on the law. So, nullification would result in a not guilty, but the reasoning to get there, we don't know. So, maybe we've nullified some juries.
Brandon: Because we really would never know.
Monica: You would never know. Unless you speak to jurors after, which oftentimes attorneys do like to do that because they like to get their take or wonder what they thought about either their performance, which I don't really think—
Brandon: As a young prosecutor, I tried to hear what the jurors thought about everything, including how we—
Monica: Performed. Like, yeah. How we were.
Brandon: Mm-hmm. How, like — did we come off professional? Did we come off like we knew what we were doing and I found it helpful to get that feedback. I've had jurors cold call me before. Find me on the bar website—
Monica: Wow.
Brandon: And just cold call me and just say— it was another lawyer that was, and just tell me what they thought of the case and I always found it really, really helpful and thought it was nice and yeah.
Monica: Some jurors give you some, like, really good insight. Like, talking to them after. That's really cool and some get really invested like yours and reach out later. So, that's pretty cool. There's another aspect of jury selection where something is said in the room because some things are said openly and then other things are said privately.
Brandon: Mm-hmm.
Monica: And we ask, like, if it's going to be a little sensitive, let's go sidebar where it's more private and it's just the attorneys and the judge and we can discuss this. But sometimes people say some unhinged things in the open courtroom, which they're being honest, so they can't be blamed for that, but sometimes it will poison the entire panel and then you're like—
Brandon: Then it's tainted. We gotta get rid of y'all.
Monica: Right, and the whole panel has got to go. And that happens.
Brandon: Yeah. People can say something overly political, people can say something that's racist, people can say something that is so powerful that all of the potential jurors now look at this defendant and it's completely tainted against, really against that person.
Monica: Yeah. That's what it comes down to. So, that's also another issue that comes up in jury selection, but it is such an important process of the system and ultimately jurors are needed. So, as inconvenient as it is, it's so important to participate in jury selection because you are affecting so many people in the process and potentially somebody's livelihood, future and liberty. And that's something that could either delay the process, affect the process, whatever it is, but show up to jury selection.
Brandon: And be honest.
Monica: Yes.
Wrap-Up
Monica: But I think that wraps up today's episode. And if you are liking this episode, make sure you check the show notes, you like, follow, subscribe, ComeBackWithaWarrant.pod on all platforms and leave us a 5-star review.
Monica: And if you don't like it—
Brandon: Come back with a warrant.