There has been a lot of commentary in recent days about jury selection, much of it focused on the use by Gerald Stanley’s defense counsel’s of his peremptory challenges to exclude indigenous people from the jury deliberating culpability for the death of Colten Boushie. Most of those commenting have never been involved in the selection of a jury. I have. Let me tell you what it’s like.
It’s 9:30 on a Monday morning, although you been in the building for over two hours already. You are pacing the hallway in front of the courtroom in your robes, waiting for the doors to open, casually scanning the crowd of people assembled in the public waiting areas, wondering which of them will end up as potential jurors.
Your stomach is sour from tension, and many cups of coffee, and your temples are throbbing from lack of sleep. The weekend just past is a blur, spent hunched over your file, reading and re-reading every scrap of paper in it, and writing and rewriting your opening address to the jury
The Sheriff has provided you with a list of the 200 or so potential jurors he has assembled, which reveals only their name and address. There isn’t much you can do with that scant information, so as you pace you try to figure out what sorts of people are most likely to be sympathetic to your client (who may very well be guilty of the offense for which he is charged, but you have been very careful not to ask him directly) conversely, what sorts of jurors might tend to take a harsher view of your client’s actions?
Far from the highly researched process that certain popular TV shows portray, the actual process of choosing a jury consists of no more than the rapid application of hunches, stereotypes, conventional wisdom, and a bit of pop psychology, all done on the fly.
The unlucky candidates, who are about to be wrested away from their normal lives for two or three weeks or longer, are each assigned a number, and the cards bearing those numbers go into a ballot box from which they are drawn at random by the court clerk
As a juror’s number is called,they step forward and for the first time you get to observe them, noting if they young, old, male, female, middle-class, or working class. Trying to guess, are they liberal, conservative? red-neck or intellectual ? and yes you quickly make note of their race. Sometimes that is important, but mostly it isn’t.
Talk about first impressions- you have but a few seconds to study the person in front of the court, perform some sort of superficial character analysis,( judging the ‘book’ only by its cover, and fleetingly at that,) and make a determination as to whether you can live with them on your jury or not
Let’s say your client is a woman who has murdered her husband and you intend to trot out a battered wives defense. You would love to have a jury comprised mainly of women and the more care-worn, the better, so you rejoice when the first ballots drawn produce women who seem to fit your preferred demographic. “Content, M’lord” you intone, only to have your arch-nemesis, the Crown prosecutor, exercise her peremptory challenges to have them stood aside. She doesn’t want women possibly sympathetic to the accused sitting on the jury.
A potential juror is called, and he stands with a face as black as thunder, his crew-cut bristling. Your gut tells you that this guy is going to be nothing but trouble. He’s pissed at being there, and possibly harbors the belief that only guilty people get charged. Worse yet, he’s staring at you, blaming you for the potential disruption to his life. You decide to spend one of your precious peremptory challenges to have the man excused.
For a first-degree murder charge you have the luxury of twenty such challenges; for lesser charges that could still involve jail time of more than five years you get twelve, and for lesser charges still, you get a mere four. You spend them parsimoniously, knowing that once you have run out, you are at the mercy of the jury lottery.
Let’s say your client is a long-haired young man whose fundamental crime was being a horse’s ass while drunk, but whose escapades led to much more serious consequences, and criminal charges. You think you want the youngest jury possible. You want jurors inclined to turn an indulgent eye upon youthful hi-jinks. Instead, the court clerk produces a gentleman in his 60s with a stern face and military bearing. You don’t want him on the jury, but you’re running low on peremptory challenges. You notice though that he’s wearing both hearing aids and glasses. It’s time to challenge for cause, based on the gentlemen’s possible physical inability to hear and see the evidence. It’s a long shot, and you’re making bricks without straw, because you have nothing to go on except the fleeting observation that he’s wearing hearing aids. The last thing you want is to look foolish in front to of the entire jury panel, and having challenged the ability of the man, you have made an enemy if, in the end he makes it onto the jury.
A challenge for cause can be made, most importantly, where the juror may not be impartial, but also if the juror himself is a convicted criminal, or an “alien”, is physically infirm, or not proficient in the official language being used in the court. The making of a challenge results in a mini trial presided over by none other than the last two jurors previously selected, so it is a mini jury trial as well. It takes a brave defence counsel to challenge a total stranger as to his impartiality, based on nothing more than the way he looks, so these mini trials are by no means routine.
Not very scientific is it? it is a somewhat random and very arbitrary process, guided only by the knee-jerk reactions, hunches and sometimes prejudices of the lawyers involved. The defence using their challenges to attempt to exclude from the jury those who may be hostile to their defense, while the Crown prosecutor attempts the opposite. Eventually, both sides exhaust both their peremptory challenges and themselves, and the jury is finally chosen. The process is as fickle as any other lottery.
At the end of the day, despite all the second-guessing and maneuvering of the lawyers involved, the jury is eventually allowed to do its work, and is uncanny how well a group of total strangers, drawn from all walks of life, can come together and unerringly sniff out the truth; cutting through lies and deception and obfuscation, recognizing bullshit for what it is, and arriving at a true verdict. It is a remarkable system.