Selecting a jury in a criminal case by a defense attorney is one of the most—if not the most—critical stages in a criminal trial. It begins by entering court on the day of trial with a thorough understanding of the case, being prepared with a specific defense but aware other potential defenses may develop once the trial gets underway, being aware of the key witnesses and their probable testimony, and possessing a keen understanding of the prosecutorial theory in the case.
The key to a successful defense is identifying the jurors most receptive to the defense themes presented during the trial. This identification process begins with voir dire—the initial process of questioning prospective jurors to determine their suitability to serve on a jury in a particular case. Identifying jurors with bias or prejudice is especially true in child sexual assault cases, given the inherent bias that most people have when it comes to crimes against children.
The National Center for Victims of Crime reports that 1 in 5 girls and 1 in 20 boys are victims of sexual abuse and that 20 percent of adult females and 5-10 percent of adult males recall a child sexual assault or some form of sexual abuse. These victims generally have a network in varying degrees of family and friends who are aware of this child sexual abuse. These statistics mean that roughly 100 million Americans have either been sexually abused as children or know someone who has been abused.
That is why a defense attorney’s voir dire should have specific questions about whether the prospective juror has ever been a victim of child sexual assault or abuse or whether they know anyone who has been a victim.
Along with targeted questions about sexual abuse, defense counsel should prepare a profile of jurors they think will be able to hear the evidence of the case before the court fairly. This profile should consider the prospective juror’s education, employment, hobbies, family status, and other factors relevant to understanding their potential predisposition in a case.
Defense counsel should then pursue a calm, patient line of questioning to elicit honest responses and discussions.
ASSESS COMMON MISCONCEPTIONS
There is a wide array of misconceptions in a child sexual abuse case, namely, that children never lie about sexual abuse and that child sexual abuse is so widespread that it is an imminent threat to public safety. They include:
- Some children do lie and make false allegations of sexual abuse against adults, generally within the parameters of family, relatives, church, school, or sports. Various research studies put the percentage of false allegations of child sexual abuse between 2 and 10 percent. Based on trial experience, defense attorneys know the rate is significantly higher. That’s why attorneys should question prospective jurors about whether they believe children never lie about allegations of sexual abuse.
- Prospective jurors should be asked if they believe child sexual abuse occurs frequently or whether it has been overblown by media outlets, law enforcement, and “get tough on crime” politicians.
EDUCATE THE JURY POOL
At the end of the case, the judge will instruct the jury on the law and constitutional principles they must adhere to in deciding the case. Two of these principles, however, should be explored during voir dire. They are:
- Discuss the juror’s sworn duty to respect the constitutional presumption of innocence, even in an emotionally charged case like a child sexual abuse case.
- Discuss the contours of “beyond a reasonable doubt” and its application in a child sexual assault case.
EXPLORE POTENTIAL JUROR BIASES
Every prospective juror enters the courtroom with a baggage of biases about people, political issues, crime, and particular types of criminal offenders. These include:
- Prospective jurors’ experiences with sexual or physical abuse and how their own childhood experiences might influence their ability to be fair and impartial in a case involving child testimony.
- Media coverage of child sexual abuse and child sex offenders may influence their media-shaped views on their jury room deliberations.
- The ability of prospective jurors to be impartial in assessing a child’s ability to recall and report past events, especially when influenced by an adult.
SPECIFIC CASE FACTORS
Each child sexual assault case has its own distinct factors that must be assessed by a jury in an impartial and fair manner. Defense counsel should probe deftly into the following areas to determine a juror’s ability or willingness to be fair and unbiased:
- Prospective juror’s feelings about delayed reporting—more commonly referred to as “delayed outcry”—in child sexual assault cases and their ability to fairly assess the reasons given for the delay.
- Most child sexual assault cases have limited or no physical evidence to support the allegation. This is why legislatures and the courts have said that a child’s testimony alone is sufficient for conviction. Defense counsel should probe juror’s feelings about a child’s testimony that may be both flawed and contradictory but is used to send a person to prison for the rest of their life.
- Question prospective jurors about their feelings regarding “expert” testimony, especially in areas of child memory or indirect vouchers about a child’s veracity.
- Probe for a prospective juror’s willingness to remain unemotional and thereby impartial after listening to the child’s graphic testimony about the abuse.
- Ask the prospective jurors if they will punish the defense lawyer for cross-examining the child witness—questions necessary to identify inaccuracies and contradictions.
FINAL REACTIONS
There is no do-over once a jury has been chosen, sworn in, and seated. The case then belongs to the jury. The prosecution will launch into a full frontal assault on the defendant to prove its case beyond a reasonable doubt, and the defense must be ready to refute, discredit, and even disprove parts of the prosecution’s case. The jury is the final judge of the facts, and that’s precisely why voir dire is critical to securing a fair and impartial verdict.
