When a defense lawyer is faced with the challenge of picking a jury, one of the most important aspects they need to know is how to use a jury challenge. Jury challenges come in a variety of forms. To have a better understanding of how to challenge jurors, we will present an outline of how this issue should be addressed. We will then obtain insight from some of the top lawyers in our state.
Challenges to potential jurors come in two flavors: A challenge for cause. A challenge for purpose is a challenge because there is a clear bias on behalf of the juror. Things such as racism, bigotry, family members involved in the case, friendships with the witnesses, and anything that could affect the objectivity of the jurors could lead to a challenge for cause. In Michigan, there is no limitation to challenges for cause, but making such a challenge is at the discretion of the judge that is in charge of the trial. The second type of challenge is the “Peremptory Challenge,” which is described in Michigan Legislature Section 768.13.
“The Peremptory Challenge”
A peremptory challenge is defined in “Black’s Law Dictionary” as “One of a limited number of special jury challenges given to each party before trial. A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation – unless the opposing party presents a prima facie argument that this challenge was used to discriminate from race, ethnicity, or sex.”
In Michigan, both the prosecutor and the defense counsel are entitled to some peremptory challenges. In a capital case, the standard is to have 12 challenges each. (A capital case is one where the defendant is facing life in prison should they be convicted). If there are multiple defendants in the said case, that number changes. The literal text of the statute states:
(1) A person who is being tried alone for an offense punishable by death or imprisonment for life shall be allowed to challenge peremptorily 12 of the persons drawn to serve as jurors. In a case punishable by death or imprisonment for life that involves two or more defendants, a defendant shall be allowed the following number of peremptory challenges:
(a) Two defendants – 10 each.
(b) Three defendants – 9 each.
(c) Four defendants – 8 each.
(d) Five or more defendants – 7 each.
In a non-capital case, according to Michigan Legislature Section 768.12, both the prosecutor and the criminal defendant are entitled to 5 peremptory challenges each. This makes the selection much more difficult even though the charge is not as high as the capital offense.
With this outline in place, the next thing that we will have to discuss is a series of questions that the criminal attorney should ask the prospective jury. These questions will help the lawyer understand the personality of the potential juror. In a future article, a sample of these questions will be provided. While much of this information could be found in a Kaplan Bar Exam Course (NYSE: GHC), the practical knowledge of challenging jurors becomes much more complicated.
Matthew McManus is the Managing Member of McManus and Amadeo in Ann Arbor, Michigan. McManus is known as a top business lawyer and one of the top researchers in the State of Michigan and the federal court system. McManus spoke of jury challenges when he said, “Every county is very different. What works in Wayne County will not work in Washtenaw County; Studies have shown the bigger the jury pool, the more research that needs to be done. This is a very vague issue.”
Jennifer Kelley is a Senior Associate for McManus and Amadeo and one of the top family law attorneys across the State of Michigan. Kelley added insight when she said, “I find a lot of my clients are concerned about being on jurors. They often tell me that while they have a pending case, being a juror can lead them to a great deal of confusion. Sometimes this information will be revealed in a jury questionnaire, and sometimes it will not. It’s amazing how being a juror in an unrelated matter can affect a current case.”
William Amadeo is a partner at McManus and Amadeo and is known as one of the top criminal lawyers in the State of Michigan and the federal court system. Amadeo provided commentary when he said, “The lawyer needs to examine the social media and the political affiliations of the potential juror. In a CSC case, I’ll ask the jurors how they feel about the allegations made against Joe Biden, Justice Brett Kavanaugh, and Antonio Brown. I’ll ask the jurors thoughts on President Trump and Governor Whitmer. This will tell me if they have a political bias and if they are up to date on current issues. If I’m going to spend a challenge on a juror, I want to make sure that it counts.”
Nancy Eaton-Gordon is a partner at Jackson Eaton-Gordon in Lenawee, County, Michigan. Eaton-Gordon is one of the top attorneys in Lenawee County and added insight to the discussion when she said, “A Lenawee Jury has some remarkable differences than an Ingham County, jury. If we are dealing with a capital case, even though we are afforded more challenges, I want to use them wisely. A deep dive into the jury pool is critical.”
While the challenges can make the difference between guilty and innocence, jury questionnaires provide insight into your jury pool. In our next article, we will discuss the questionnaires and how they may affect juries during COVID-19.