Mark Bennett's blog Defending People has a few interesting posts I stumbled across today that are directly relevant to my last jury selection experience. In Fighting Back Against Common Sense he points out the asinine prosecutorial practice of offering "common sense" arguments. The slick little blonde prosecuting the case I showed up for offering a couple such arguments during jury selection. For example, she asked how we'd determine the credibility of her one witness, a cop. And she tried to find jurors who agreed with her that they'd exercise their "common sense" here. I replied that she could take her "common sense" and shove it. (Ok, I didn't quite say that.) But I did explicitly inform her that she'd have to adduce evidence in favor of the reliability/credibility of her star witness especially given that he has been trained to give persuasive testimony. Her response: "You know I am not required to do that, right?" And of course we know she isn't required to prove her case beyond a reasonable doubt. She's just required to do that in order to get a conviction.
A related issue Bennett discusses here and here is the "One Witness Rule" trick question. I think the crafty little witch tried this out too, but I wouldn't bet my life on it. The goal here is to get rid of jurors who won't convict if the prosecution offers just one witness. Now of course, jurors (like myself in this case) may not convict if the prosecution offers just one witness precisely because the prosecutor cannot establish her case beyond a reasonable doubt with just one witness. So nasty prosecutors like to ask the following question:
If we only present one witness, but based on that witness's testimony you believe beyond a reasonable doubt that the defendant is guilty, can you convict him?
If you say that you cannot convict in such a case, the prosecutor can strike you from the jury pool "for cause". Prosecutors can strike prospective jurors "for cause" when they can establish that the juror is unfit. Here, a negative answer to the question "indicates" (in scare quotes, because as we'll see, it doesn't do anything of the sort) you are unfit because you won't convict even though you believe beyond a reasonable doubt that the defendant is guilty---which, of course, is when, and only when, you are supposed to convict in a criminal case.
Now obviously, chances are that the average juror who answers this question negatively has done so because she believes that the testimony of a single witness will not suffice to meet the burden of proof. The prosecutor is asking a question that, for many jurors, takes the form of a counterfactual with an impossible antecedent. [Such questions take the following form, where p and q stand in for sentences: "If it were the case that p (which is of course impossible!), then would it also be the case that q?"] And if you know your average juror, you know they can't answer these sorts of questions very well. Hell, philosophers don't even know how to answer them.
So how to fix this problem? Firing the incompetent judges who accept this sort of for-cause challenge would be nice. Sadly, I don't think that's likely, since as far as I know, only three people (the judge and both attorneys) know why any particular juror was struck. And how do you think your average judge is going to treat a defense attorney that attempts to get him removed? Alternatively, we could try to legally enforce publication of the reasons for which jurors were struck. I know of no good reasons not to pass such laws. But that won't help now.
So the best currently available strategy, then, is for the defense attorney to, whenever possible, point out the lengths to which the prosecution is engaged is deception and trickery. For if there's on thing your average juror doesn't like, it's being hoodwinked. Prosecutors who engage in this kind of practice have zero credibility. They are deceptive schmucks who deserve nothing better than being part of a chain gang picking up litter on the roadside. Exploiting trick questions to strike jurors who will not be favorable to your pathetic attempt to adduce evidence, in cases in which people's lives hang in the balance, renders you one of the most base and vulgar human beings living near the surface of the Earth. The defense should observe as much and explicitly point out the kind of human waste they're up against.
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