Jury Selection
| Author | Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen |
| Pages | 571-612 |
CHAPTER 20
Jury Selection
§20:01 New York Trial Notebook 20-2
I. PRINCIPLES AND GOALS
§20:01 Right to Voir Dire
Although the “right” to conduct voir dire
is not found explicitly in the CPLR, it has been
recognized as fundamental for over a hundred
years. [See Fortune v. Trainor, 19 NYS 598 (Sup
Ct Gen T, 1st Dept 1892), affirmed 141 NY 605,
36 NE 740 (1894).] Furthermore, voir dire is
provided for in the Uniform Rules applicable to
Supreme and County Court. [22 NYCRR §202.33
(“Conduct of the Voir Dire”).] Counsel are
permitted to address individual panel members
in turn, or the panel as a whole. [See 22 NYCRR
§202.33(d).]
The importance of voir dire is also recognized
US 127, 143-144, 114 S Ct 1419, 1429, 128 L Ed
2d 89, 106 (1994) (“[v]oir dire provides a means
of discovering actual or implied bias and a firmer
basis [than relying upon stereotypes] upon which
the parties may exercise challenges intelligently”)
(citing Nebraska Press Assn v. Stuart, 427 US
539, 602, 96 S Ct 2791, 2823, 49 L Ed 2d 683,
723 (1976) (“voir dire ‘facilitate[s] intelligent
exercise of peremptory challenges and [helps]
uncover factors that would dictate disqualification
for cause’”) and United States v. Witt, 718 F2d
1494, 1497 (10th Cir 1983) (“Without an adequate
foundation, counsel cannot exercise sensitive and
intelligent peremptory challenges”).]
§20:02 Purpose of Voir Dire
Voir dire has two principal aims:
• To acquaint prospective jurors with counsel
and the case.
• To disclose sufficient information about
each prospective juror to allow counsel
to intelligently decide whether to attempt
to get that juror off the panel (either
by challenge for cause or a peremptory
challenge).
§20:03 Importance of Jury
Selection
A trial begins when prospective jury
members “are called for examination as to their
qualifications ... .” [Carlisle v. County of Nassau,
64 AD2d 15, 19, 408 NYS2d 114, 116 (2d Dept
1978), appeal dismissed 45 NY2d 965 (1978).]
Many experienced practitioners believe that the
single most important aspect of a trial is selection
of the jury.
Jury selection is your only opportunity to
affect the makeup of the panel of members of the
community who will decide your client’s case.
Obviously, the type of people who sit on the jury,
together with their pre-existing attitudes, opinions
and prejudices, will profoundly influence how
they will perceive the evidence and the arguments
made by you and your adversary, not to mention
how they will ultimately decide the factual issues.
Unless you are totally confident of obtaining a
directed verdict (and at the beginning of the trial,
no one can be that confident), you will be asking
the six people who sit on your jury to decide the
case the way you want. Who they are cannot help
but affect their decision.
§20:04 Selection Is Actually
Deselecting
The term “jury selection” is widely used
and codified. [22 NYCRR §220.1, Subpart A
(“Uniform Rules for Jury Selection”).] However, it
is a misnomer. Jurors are not “selected” by counsel.
Rather, panel members are selected randomly to sit
in the jury box, and counsel attempt to influence
the ultimate makeup of the jury by “deselecting”
panel members who would otherwise sit.
Furthermore, counsel’s ability to affect who
actually sits on the jury has been greatly diminished
by statutes and rules. [See CPLR 4109 (amended
in 1996 to reduce the number of peremptory
challenges; 22 NYCRR §202.33(d) (imposition of
voir dire time limitations); 22 NYCRR §202.33(e)
(increasing judicial supervision).]
20-3 Jury Selection §20:10
§20:05 Fair Panel of Peers
Although the ultimate goal of voir dire is to
impanel an impartial jury, every attorney would
rather have a jury with favorable inclinations
toward his or her client. All counsel want to select
jurors who will be receptive to their version of
the case; and if all counsel are in some measure
successful, the result should be a balanced jury.
The selection of the jury, like every other part
of the trial, is an adversarial proceeding and the
success of the system depends upon the realization
that counsel do their best to form a jury most
favorable to their respective sides.
IN PRACTICE:
Be sure that the prospective jurors gain
the impression that you want an unbiased
jury. If they do not, the integrity of your image
may be tarnished. A benefit may be that the
prospective jurors think that your cause is
just, and you only need a jury with an open
mind for your side to prevail.
§20:06 Be Prepared to Proceed
With the Trial
It would seem elementary that once a jury
has been selected, counsel should be prepared
to proceed with the trial. In practice, in some
jurisdictions the jury is selected with the
understanding that the “trial” (or rather, the taking
of evidence, since the trial actually begins with
jury selection) will commence at some specific
later time, sometimes as much as a week or two
weeks after jury selection is completed. However,
if the trial is expected to proceed immediately
after jury selection, it behooves counsel to be
fully prepared to proceed. In fact, failure to
proceed may result in sanctions being imposed
upon counsel. In Schwartz v. Clarkson Central
School Dist. [Matter of Khafif], 6 Misc3d 1021A,
800 NYS2d 356 (Sup Ct Rockland County 2005),
after a long history of delay in the underlying
case, the jury was called on February 2, 2005,
when trial counsel “without warning, advised
the Court that he would not try the case at this
time. His reason: plaintiff yet again was unable to
attend the trial due to her school commitments.”
The Court found counsels’ actions frivolous and
sanctioned them $1000 pursuant to 22 NYCRR
§130-1.3. [See also Wasson v. Mendik, 253 AD2d
711, 678 NYS2d 15 (1st Dept 1998) (sanctions
were properly imposed upon plaintiff’s attorneys
for frivolously proceeding to jury selection while
intending not to proceed to trial); McLoughlin v.
Henke, 130 Misc2d 1091, 499 NYS2d 332 (Sup
Ct Queens County 1986) (jury selected after a
full day of voir dire; the following day, plaintiff’s
counsel announced plaintiff was unavailable and
applied to disband the jury and adjourn the trial
for a number of weeks. Counsel had made no
effort to contact his client until after the jury had
been selected, and so had been unaware that the
client had been injured in an auto accident and
was hospitalized. Rather than force the case to
trial or dismiss the complaint, the Court granted
an adjournment conditioned on counsel paying
defendant’s counsel $250 and paying $500 to the
Clients’ Security Fund.).]
[§§20:07–20:09 Reserved]
II. PROCEDURE
A. GENERAL POINTS
§20:10 General Principles
Questioning, challenging and selecting jurors
must be performed in accordance with general
principles applicable to jury selection. [22 NYCRR
§202.33(f), which refers to Appendix E).]
Appendix E, Subpart A, specifies the
following General Principles for jury selection,
which apply regardless of which method of jury
selection is used:
1. If jury selection cannot proceed
immediately, counsel must promptly seek
further instructions.
2. A total of eight jurors, including
alternates, are generally selected, but the
Court may permit a greater number of
alternates. [NOTE: Since CPLR 4104
specifies that a jury shall be comprised of
six persons, this implies two alternates.]
Counsel may consent to “nondesignated”
alternate jurors, and then have additional
peremptory challenges. [NOTE: In most
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