Jury selection is the process by which your DUI lawyer will question the prospective jurors in an effort to weed out anyone who will not be fair and impartial in deciding your case. A general goal of this questioning process is to encourage the jurors to open up. “Yes or no” questions will not work. Instead, your DUI lawyer will ask open-ended questions that require the jurors to talk about themselves and their experiences and opinions. In talking, they may reveal a bias against your case. Another goal of the jury selection process is to introduce the jurors to your case theme and to begin telling your story.
What follows are several categories of jury selection questions for DUI cases, and typical responses to those questions. Some of these categories may not fit the facts or circumstances of your particular case, but this will give you a good overview of the important defense issues in most DUI cases and the potential areas of inquiry your DUI lawyer might explore.
General fitness to serve as a DUI juror
A DUI juror’s most important job is to listen carefully to the testimony that is given because a verdict can only be based on the evidence. The following series of questions will encourage the potential jurors to open up about aspects of their personal lives that may distract their attention from the testimony.
Q: Listening carefully for an extended period can be very difficult. This is especially true when our minds are distracted. The problem with a jury trial is we expect that you will listen all the way through and not miss anything that happens here in the court room. We all have busy lives, and I’m interested in learning if whether or not any of you have anything in your lives right now that may be distracting to you. Among the potential jurors in a recent jury selection was a father who was expecting. The baby was coming any time. His wife was ready to deliver. He explained that he really was too distracted to be a good juror, and so, he was excused. So my first question is, do any of you have any sick loved ones at home that you care for?
A: [Raised hand.] My mother lives with us and she’s suffering from early dementia. I worry about her a lot, and I care for her when I’m at home.
Q: I’m sorry to hear that. I imagine that can be very difficult at times?
Q: Who will be caring for her if you’re not there?
A: There’s a nurse who comes to our home when I’m not available.
Q: I know when my father was sick it was often hard for me to think of anything else. It definitely had an impact on my concentration. I’m only guessing, but has your mother been on your mind this morning, maybe even as we started jury selection?
A: Yes, she has. My mother doesn’t always get along well with the nurse, and I keep thinking I’d like to call home to see how she’s doing.
Q: If you weren’t here, how often do you think you would call home?
A: Probably every hour, hour-and-a-half. It depends, but without being able to call, she certainly will be on my mind.
Q: I know you want to do your civic duty and serve as a juror, but do you think this might not be the best time in your life for you to serve?
A: It’s not, but I didn’t think I could say “no.”
Q: Do I understand you to say that in fairness to Jim (the defendant), you’re probably not the best juror for this case?
A: I would certainly try to pay attention and do my job, but I just can’t say for sure that I won’t be thinking about what’s happening at home during the trial.
Q: And while you’re thinking of your mother, do you think you might miss some of the testimony?
A: It’s certainly possible.
Your DUI attorney also may ask similar questions regarding other common distractions, including (1) medications the juror is taking that might impact his or her ability to concentrate; (2) illnesses the juror suffers from that might impact his or her ability to concentrate or stay awake or sit for long periods of time; (3) young children at home; and (4) looming work deadlines.
Many people have very strong and very negative feelings and opinions about alcohol consumption. One effective way for your DUI lawyer to uncover these opinions is to ask jurors if they serve alcohol in their homes. For example:
Q: Mr. Jones, do you keep alcohol in your home?
Q: Can you tell me a little bit more about this, such as the type of alcohol, where it is kept, and so forth?
The answer to this question will reveal a great deal about how this juror views alcohol. For example, there may be a big difference between the juror who keeps some beer or wine in the refrigerator and the juror who has a fully stocked bar in his home.
Q: When was the last time you served alcohol to someone in your home?
A: Last night. I had some friends over and we watched the game.
Q: After the game, did you allow your friends to drive home?
Q: Mr. Jones, have you ever consumed alcohol and then driven a car?
Q: And were you able to drive safely?
Your DUI lawyer may be able to come up with other scenarios that will help jurors share their feelings about alcohol consumption. If, for example, the juror has marriage-age children, your DUI lawyer might ask if alcohol was served at the wedding.
Just because a person does not drink alcohol does not automatically make him or her a biased juror in a DUI trial. An experienced DUI attorney will ask follow-up questions to learn why the prospective juror does not drink alcohol. It may simply be due to a medical condition and not because he or she has a negative opinion about alcohol consumption.
Field sobriety tests
In most drunk driving cases, the prosecution will rely on the observations of the arresting officer, including his or her observations about your performance on any field sobriety tests conducted at the roadside and any chemical tests that may have been conducted. Your DUI lawyer will explore these issues during jury selection by asking questions that reveal the inherent limitations of the officer’s observations. A good way to do this is to ask questions that allow the jurors to stand in your place and imagine how they might perform on similar tests. For example:
Q: Mr. Smith, if I were to ask you to step out of the jury box, walk over here and stand on one leg, would you be able to do so?
A: No, I don’t think so.
Q: Why not?
A: Well, first of all, I’d be very nervous, and secondly, I’m just not all that coordinated.
Q: Ms. Jones, if I placed a 2×4 here on the floor and asked you to walk nine steps on top of it, heel-to-toe, could you do that?
A: I could probably do okay on that one.
Q: Fair enough. What if I took the same 2×4 and suspended it between two tall buildings?
A: No way. I couldn’t do that.
Q: Why the difference?
A: Well, I’d be too nervous about falling. I’d be scared and my nerves would affect my ability to do that. I wouldn’t be nearly as nervous here in the court room.
Q: So, do you agree that your ability to perform these tasks might be impacted by the conditions or the environment?
A: Yes, absolutely.
Q: Mr. Smith, do you agree or disagree with Ms. Jones?
Q: Ms. Little, do you think being pulled over at night and having several cops wearing guns and giving you orders and instructions would make you nervous.
A: I’d be terrified.
Q: Might that impact your ability to remember and perform?
A: It certainly might.
This line of questioning will help the jurors quickly understand that there are many things, besides the consumption of alcohol, which might have an impact on one’s ability to perform the so-called field sobriety tests at the roadside.
An effective way for your DUI lawyer to educate the jurors about the fallibility of chemical testing is to engage one juror — a person who has already disclosed to the prosecutor or the court that he or she has a prior DUI conviction — in the following exchange:
Q: Mr. Smith, you told the government lawyer that you’ve been convicted of DUI; may I ask if you stood trial on that case?
Q: Did you take a breath or blood test in that case?
A: I took a breath test.
Q: So, before you plead guilty, did your attorney discuss with you any of the reasons that your test result may have been wrong?
A: [Typically] No, the only thing he did really was tell me I should plead guilty.
Q: So, if I could show you today that in fact your test result was probably wrong, what would think about your conviction?
A: I’d be pretty upset about it!
Q: And if there was a problem with the breath test in this case, say the police didn’t follow the rules, do you think it would be the judge who should do something about it?
A: Yes, that doesn’t seem right, so I think it would be the job of the judge.
Q: Well, what would you think if you learned that only a jury can do that; what I mean is, only a jury can decide what to do if the police didn’t follow the rules?
A: I’d think maybe I should have gone to trial on my case.
When your DUI lawyer questions a prospective juror in this manner, it lets the entire jury panel know that problems with DUI breath tests and DUI blood tests can arise, and that it is up to them, and not the judge, to respond to these problems. It also teaches the jury panel that just because the judge allows a DUI test result into evidence does not mean that the judge is vouching for the reliability of the result. Finally, an exchange like this with a target juror helps the entire jury panel understand why they are being asked to spend their time hearing a “cut-and-dried” case like drunk driving.
DUI defendant not testifying at trial
One of the most difficult decisions your DUI lawyer will have to make is whether or not to put you on the stand to testify at your trial. In most DUI trials, the defendant does not testify; however, the jury selection process can help your lawyer learn how the potential jurors feel about this issue and, more importantly, give your DUI lawyer an opportunity to educate the jurors about the many reasons a defendant may choose not to testify. Consider this line of questioning:
Q: It is said that public speaking is one of the greatest fears we share, and I can tell you that no matter how many times I do this, I still get nervous. That’s why I keep drinking water, because my mouth gets dry, and I get those butterflies in my stomach. Is there anyone here today who does not feel at least a little bit nervous?
A: [No hands raised].
Q: Mr. Smith, when the judge was asking you questions, were you feeling nervous?
A: Yes, I was.
Q: Why was that do you think?
A: I’ve never been in a court room before, and I didn’t want to say anything wrong. I wasn’t sure exactly what was expected of me.
Q: What if you were sitting here [pointing or gesturing to the witness stand] and she [pointing at the prosecutor] was asking you questions, do you think that might make you nervous?
A: [Laughing nervously] Yes. That would make me very nervous.
Q: If you were on the witness stand being cross-examined, would you be worried about anything then?
A: I’d be worried that my words would get turned around, that I might get mixed up.
Q: Is there anything else?
A: Well, I’d be worried I wouldn’t be believed.
Q: What if Jimmy here decides, based on my advice, not to take the stand; what would you think of that?
A: I’m not sure.
Q: Can you think of any reason why he might not want to take the stand?
A: The reasons I just gave you for starters.
Q: Now, you’re not on trial here, and yet you said you’d be nervous. Do you think you’d be even more nervous if you were Jimmy and your fate was about to be decided?
A: Yes, I do.
Q: And do you think all those nerves while been cross-examined by the prosecutor might impact on how you were perceived by the jury.
A: I would probably be worried that my nervousness would be interpreted as me not telling the truth.
Q: So, if you were on trial here, do you think you would want to take the stand?
A: Not if I could help it.
Your DUI lawyer could use a similar line of questioning to explain to the jury the difference between a lay person (like you) taking the stand and a more experienced witness (like a police witness or the State’s experts):
Q: Do you think practicing would make you feel less nervous?
Q: So a person who has had practice, or experience, testifying in court likely would appear less nervous than someone testifying for the first time?
The most important thing for your DUI lawyer to do is to help the jury avoid the knee-jerk misconception that only a guilty person would sit silently and an innocent person would want to take the stand to defend himself.