Robert Bianchi, appeared on Fox News to discuss the Boston Bombing trial and give his insight on the trial that is set to start.

By Robert A. Bianchi, Esq.:  Jury selection in this case is about to start.  While we discussed many issues on this Fox News clip, I would like to turn my attention to the art of jury selection and its importance that is often overlooked by many attorneys.

Motions to change “venue” or have the trial in another location due to pre-trial publicity are rarely granted.  This is especially so in today’s media age where everyone has instant access to cases of a high profile nature.  Changes of venue typically occur when there is a conflict of interest that calls into question the impartiality of the process.  A murder case I once handled had venue changed because the victim’s close relative was the head of the courts in that county.  In such a case, there was an appearance that such a relationship could later be argued to have tainted the courts that are to remain independent and impartial.  Hence, the trial was relocated to another county.

Since the Boston Bombing defendant’s motion to change venue was predictably denied, they will now begin the important process of jury selection.  I take jury selection very seriously, as the people rendering the verdict are in reality the most important people in the courtroom. I have often been amazed by the lack of interest in knowing the most you can about jurors before accepting them onto the jury.  Being a good judge of human nature is key here.  You have to make assessments of people on very limited data, using your common sense and intuition to pick a jury that you feel will be willing to listen to your position without “prejudice, passion or bias”  In other words, you want jurors that are fair and do not have preconceived notions that render their fairness suspect.

Oftentimes, however, we as people all have opinions and certain biases.  This will not disqualify the juror automatically.  If it did, we would never have any jury.  Rather, the court will ultimately ask the juror after questioning them if they could put aside that bias and only allow the facts of the case guide them, and if they would put their legal opinions aside and only follow the judge’s instructions on the law.  It would be surprising to many to know the strongly held opinions on the law, and what a potential juror thinks the law should be, rather than what it is. Most times, however, people tell the judge earnestly they would follow the law the judge gives, despite not agreeing with it.  If the court is satisfied with their answers, they are then eligible to sit on the jury.  The attorneys for the state and defense may ask the court to excuse a potential juror “for cause” at this point in time.  The judge makes the “call” if a juror is excused for cause after listening to the lawyers.

Jury selection typically starts in New Jersey with jurors being asked to fill out a form that has written questions on it.  It is a basic form designed to only solicit the most egregious instances of potential jurors that are not able to be fair.  The court then randomly starts picking out numbers of the jurors in the “panel” to sit in the jury box.  From there, the questionnaire will be reviewed and the court can ask any questions based upon the answers to those questions.  Also, if the attorneys wish, they can ask the judge at “sidebar” (and out of the presence of the jury) to ask additional questions.  If the judge agrees they will mostly ask the juror to come to sidebar to ask the question.  It is here that there is a far better opportunity to evaluate the juror as to “who they are as a person.”

After the court fills all of the jury seats with potential jurors, the attorneys for the prosecution and the criminal defense attorneys in New Jersey are allowed to use “peremptory challenges” which are a pre-set number of challenges each side gets to excuse a juror for any reason, so long as it is not discriminatory in nature.  This too is an art form, as there is a strategy as to the why,  how and when to remove a juror. After the attorneys exhaust their peremptory challenges, or if both sides agree they are satisfied before using all of their challenges, then that constitutes the jury that will hear the case.

As a former New Jersey Prosecutor and now Criminal Defense Attorney, it is vital that as an attorney that you access your case and have in mind what kind of juror you are looking for before jury selection begins.  Like all facets of a trial, jury selection is an art form.  Is this case a complex fraud case, a murder trial, a computer case with lots of heady expert testimony?  This will guide you to what kind of juror you want.  Now, there are no formulas when it comes to people and their nature.  But, there are certain things that you know some jurors will handle better than others. For example, an accountant is probably going to be better in a financial fraud case, than a surgeon would.

12 jurors in New Jersey sit in a criminal case in order to render a valid verdict.  Their verdict must be proven to all 12 jurors beyond a reasonable doubt.  Due to the fact that at trial there are times a juror must leave the case for a multitude of reasons, the courts usually selects 14 jurors to listen to testimony, so that there are replacement jurors available.  Otherwise, the court must declare a mistrial and start the entire trial again with a new jury.  In the event no juror leaves, at the end of the case the court randomly picks 2 of the 14 jurors to serve as “alternate jurors” which means they stay outside the jury room while the remaining 12 jurors deliberate. If during deliberations a juror is excused, then one of the alternate jurors replaces them.  It is important if this happens that the judge instructs all of the jurors that they are to begin their deliberations anew, so the alternate juror is able to be part of the entire deliberative process from the beginning.

As a jury is deliberating, the lawyers await anxiously for the decision.  There are 3 possible results that the jury can give on the charges: 1. Guilty of the charge; 2. Not guilty of the charge; 3.  Or, they may be unable to come to any conclusion either way which is often referred to as a “hung jury.”  If the jury is “hung” the court will consult with the attorneys on how to proceed.  Typically in New Jersey criminal defense cases, the court will read to the jury in court an instruction that asks them to go back into deliberate with the idea of coming to a final decision, but that they should not merely do so for the sake of getting the case resolved should they have a strongly held belief on the verdict. If the jury again states that they are “hung” the court has to be careful to again have them deliberate, as it could be seen that they were pressured to arrive at a verdict, which if it is guilty, could result in a reversal on appeal.

In most cases, if there is a guilty verdict in a case that requires state prison time, the judge will revoke a defendant’s bail and remand them to the county jail to await sentencing.  This is done legally as the defendant has now been convicted, so they no longer are presumed innocent of the charges, in addition to the fact that they are now a greater “flight” risk knowing they are going to prison.

Jury selection is key to the criminal justice process.  Great criminal defense attorneys and prosecuting attorneys in New Jersey know this and are wise to be careful with whom they select to deliberate on their cases.