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MidnightLock

First Jury Trial

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I found the "First trial" thread to be very insightful, and to contain a wealth of good information for anyone facing their first trial.  However, I have already faced that beast, and now face a new one: my first jury trial. The trial is scheduled to last two weeks and deals with several offences under the Criminal Code. While I have ran more than a dozen trials  and assisted in the preparation of two jury trials since being called to the bar at the start of the year,  I am quite nervous about running my first trial in front of a jury.  So if any of the experienced members of this forum have any advice to share,  I would be most grateful. I will be representing the accused, but I welcome any and all advice.

Edited by MidnightLock

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You're doing your first jury trial in your first year as a lawyer? :huh: That seems way too soon. How have you even gone through prelim and all the pre-trials, etc so quickly?

Have you watched a jury trial yet? If not, you need to watch, watch, watch.

The first thing you'll have to deal with is jury selection. Read the relevant sections of the Code - s.629, 630-ish. You'll have a list with jurors' names, residences and occupations. You can do some limited scouring of facebook etc. in the time between getting the list and jury selection. You can't copy or distribute that list at all, even within your office. Make sure you know how many alternates are being picked and how many peremptory challenges you get (jurors you can reject without stating the reason.) In my office, we have charts we've made up so we can quickly write down the jury numbers as they are called from the pool and decide if they are on our challenge list or not and then mark how many challenges we've made.  It is super helpful to have been a junior doing this for someone else and to have one doing it for you but if not, you'll have to manage all that by yourself.

Once the jurors are called in, you decide if you are challenging or not. I assume there is no challenge for cause - if there is, you would likely have already had motions for that (will mainly be an issue for black or indigenous or other minority defendants, sometimes for others where there were especially shocking crimes.) For regular jury selection without challenge for cause, you are just deciding what kind of people you want on the jury - do you want women? Men? Younger people? Professionals? Blue collar people? Likewise, what don't you want? Other lawyers have all kinds of theories on this and there is research saying none of it really matters or even in the US where they do extensive jury research, there is no proof that this results in better juries. So at the end of the day, I follow my gut more than anything. You have an obligation to declare if you personally know anyone in the array or your client does. Also, the Crown has an obligation not to violate the Charter so if you see the Crown challenging all the women or all the blacks or whatever, you can ask to send the potential jurors out and raise the issue with the judge.

It is important for you and your client to know that from jury selection on, they are always watching both of you and you must be mindful of that. You need to take care with your appearance - if you are female, that's your hair, makeup, stockings, shoes, nails, jewelry etc. Watch your facial expressions, your concentration on what the judge is saying, how you react to the other side, etc. and tell your client to do the same. Your client should be in a shirt and tie if male, appropriate dress shirt and skirt/pants or dress if female, even if they are in custody. They should shave and cut/style their hair as best they can. Your materials need to be organized, tabbed and easily accessible. Be prepared - don't be fumbling around. Object promptly and quickly when you need to. 

In court, make sure you address and refer to the jury often to keep them involved (ie. in cross "Can you tell the jury why you didn't mention that to the police?" In direct "Please tell the jury why you did that.") You can be a bit more dramatic/theatrical/sarcastic/funny etc. with a jury and play to them a bit, but you won't want to overdo this on your first time. You will want to make sure you repeat/highlight important points to make sure you get it. Also don't be afraid to send the jury out when necessary - if an issue comes up that needs to be dealt with between counsel and the judge. You will need to be a lot more aware of things the Crown may try to do that could prejudice your client.

Re: prejudice - make sure you have canvassed before trial whether you need a Corbett application if your client testifies (use of their prior criminal record.) The issue of whether your client testifies or not is critical before a jury - is this something that cries out for an explanation? 

The opening and closing statements are also critical. Be brief, simple language, keep it interesting/entertaining. You'll probably want to write out at least some points/notes and not try to wing it for the first time. But don't read either - make lots of eye contact. Also, make sure you address any concerns with the charge in the charge conference or you will have a hard time appealing them later. You should probably read the law on defences and what gets put to the jury over again (Cinous.) 

Be prepared for evidentiary issues that may arise such as Khelawon/Bradshaw and how this will be handled with a jury present - they are usually out and in a lot for these applications, which can annoy them.

The worst part of a jury trial for me is waiting for the verdict so I line up people to wait with me who can make me laugh and distract me.

I love jury trials. I feel like a real lawyer when I do them. Enjoy! I'm sure I will think of more things later!

*edit: comment about client shaving/cutting hair obviously assumes there isn't a religious/cultural reason not to.

 

Edited by providence
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I didn't get into all the strategizing that happens in deciding whether or not to even have a jury trial as it is already happening, but that is a topic in and of itself.

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6 minutes ago, providence said:

I didn't get into all the strategizing that happens in deciding whether or not to even have a jury trial as it is already happening, but that is a topic in and of itself.

I haven't even gotten into law school yet but this was a very interesting read. I'm the kind of person that would go watch trials at 361 University during my free time as an undergrad so this is super cool. Thank you to OP for asking the question and thank you @providence for such an insightful reply.

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I should add that with juries, so much of this is guesswork/instinct because they don't give reasons, they are not trained in the law, and you really don't know what they are thinking. They rely on the judge for the law, so you need to know the law and communicate that to the judge. But you never know what will sway your jury one way or the other. You have to try to read 12 extra faces as you deal with the evidence. 

Try not to bore your jury. This is an especially important time to make reasonable agreements - don't make them sit through qualifying an expert that will obviously qualify. 

Practical tip: If you are handing out exhibits, remember you will need 12 copies plus any alternates present plus judge and Crown. 

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Jealous of those getting to do jury trials, on the very rare occasions a party has sought a jury trial in a civil action I've been involved in, it's settled (as is of course the norm for civil litigation, but still, it hurts...).

@providence I was wondering, despite the many differences in law given how common jury trials in the US are, do you think it might it be worth OP turning to some US materials/webinars/whatever about, stylistically (not how to make objections etc. or similar US or state specific aspects involving the law and procedure), how to deal with juries? I assume the trial is occurring too soon to actually attend a workshop. From the civil perspective, many US materials and webinars are generally useful despite not being Canadian/Ontarian so long as I keep the differences in mind.

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US jury selection is way different so beyond some of the psychological insights into human nature, I don’t see how it would help. For the trial in general? We are governed by the Criminal Code and associated law and we have different traditions, so I’m not sure what would be helpful. We don’t hire jury consultants and we robe, just to pick two big differences. Once your jury is in, everything is the same as a regular trial except you are constantly on view and you need to be mindful of who you are addressing.

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I'll begin with a caveat: I have not done a jury trial. The nugget of wisdom below I was given by senior counsel.

In jury selection, pay attention to who asks to be excused but isn't. Challenge them. You don't want jurors there who don't want to be there. They will be distracted at best, resentful at worst.

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1 hour ago, Jethro said:

I'll begin with a caveat: I have not done a jury trial. The nugget of wisdom below I was given by senior counsel.

In jury selection, pay attention to who asks to be excused but isn't. Challenge them. You don't want jurors there who don't want to be there. They will be distracted at best, resentful at worst.

I've heard that too.

But I think it depends. If I know my Crown is a pedant who has a ton of witnesses and will be anal and send the jury in and out for nothing and I am going to be quick and dirty, maybe I want those people, because I can get them on my side both thinking the Crown is wasting our time.

I find that generally though, judges are pretty good about getting rid of the people who need to be so that we don't have to waste our precious challenges.

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21 hours ago, providence said:

You're doing your first jury trial in your first year as a lawyer?  That seems way too soon. How have you even gone through prelim and all the pre-trials, etc so quickly?

Have you watched a jury trial yet? If not, you need to watch, watch, watch.

The first thing you'll have to deal with is jury selection. Read the relevant sections of the Code - s.629, 630-ish. You'll have a list with jurors' names, residences and occupations. You can do some limited scouring of facebook etc. in the time between getting the list and jury selection. You can't copy or distribute that list at all, even within your office. Make sure you know how many alternates are being picked and how many peremptory challenges you get (jurors you can reject without stating the reason.) In my office, we have charts we've made up so we can quickly write down the jury numbers as they are called from the pool and decide if they are on our challenge list or not and then mark how many challenges we've made.  It is super helpful to have been a junior doing this for someone else and to have one doing it for you but if not, you'll have to manage all that by yourself.

Once the jurors are called in, you decide if you are challenging or not. I assume there is no challenge for cause - if there is, you would likely have already had motions for that (will mainly be an issue for black or indigenous or other minority defendants, sometimes for others where there were especially shocking crimes.) For regular jury selection without challenge for cause, you are just deciding what kind of people you want on the jury - do you want women? Men? Younger people? Professionals? Blue collar people? Likewise, what don't you want? Other lawyers have all kinds of theories on this and there is research saying none of it really matters or even in the US where they do extensive jury research, there is no proof that this results in better juries. So at the end of the day, I follow my gut more than anything. You have an obligation to declare if you personally know anyone in the array or your client does. Also, the Crown has an obligation not to violate the Charter so if you see the Crown challenging all the women or all the blacks or whatever, you can ask to send the potential jurors out and raise the issue with the judge.

It is important for you and your client to know that from jury selection on, they are always watching both of you and you must be mindful of that. You need to take care with your appearance - if you are female, that's your hair, makeup, stockings, shoes, nails, jewelry etc. Watch your facial expressions, your concentration on what the judge is saying, how you react to the other side, etc. and tell your client to do the same. Your client should be in a shirt and tie if male, appropriate dress shirt and skirt/pants or dress if female, even if they are in custody. They should shave and cut/style their hair as best they can. Your materials need to be organized, tabbed and easily accessible. Be prepared - don't be fumbling around. Object promptly and quickly when you need to. 

In court, make sure you address and refer to the jury often to keep them involved (ie. in cross "Can you tell the jury why you didn't mention that to the police?" In direct "Please tell the jury why you did that.") You can be a bit more dramatic/theatrical/sarcastic/funny etc. with a jury and play to them a bit, but you won't want to overdo this on your first time. You will want to make sure you repeat/highlight important points to make sure you get it. Also don't be afraid to send the jury out when necessary - if an issue comes up that needs to be dealt with between counsel and the judge. You will need to be a lot more aware of things the Crown may try to do that could prejudice your client.

Re: prejudice - make sure you have canvassed before trial whether you need a Corbett application if your client testifies (use of their prior criminal record.) The issue of whether your client testifies or not is critical before a jury - is this something that cries out for an explanation? 

The opening and closing statements are also critical. Be brief, simple language, keep it interesting/entertaining. You'll probably want to write out at least some points/notes and not try to wing it for the first time. But don't read either - make lots of eye contact. Also, make sure you address any concerns with the charge in the charge conference or you will have a hard time appealing them later. You should probably read the law on defences and what gets put to the jury over again (Cinous.) 

Be prepared for evidentiary issues that may arise such as Khelawon/Bradshaw and how this will be handled with a jury present - they are usually out and in a lot for these applications, which can annoy them.

The worst part of a jury trial for me is waiting for the verdict so I line up people to wait with me who can make me laugh and distract me.

I love jury trials. I feel like a real lawyer when I do them. Enjoy! I'm sure I will think of more things later!

*edit: comment about client shaving/cutting hair obviously assumes there isn't a religious/cultural reason not to.

 

Thank you for your advice! I found it to be quite helpful, and I particularly like the idea of making a chart for jury selection. Fortunately, I have had the opportunity to assist and participate in two full jury trials (was seated at counsel table and involved in preparations and negotiations, but wasn't permitted to address the jury or court), so that experience should  help me in carrying out and applying your advice.

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The other thing that you may not know until the array is in the courtroom is that you may want jurors that you might not otherwise want but that may relate to you personally. For example, I might be intending to challenge someone based on their gender or occupation, but then they get in the box and they turn out to be from the same ethnic group as me but their name didn't make it obvious for whatever reason. Now maybe I want them because they will look up to me as a role model and I'll be able to connect with them and make subtle in-group comments that only they will understand, and they'll advocate for my positions in the jury room.

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Thank you so much for this  . I just ran my first Jury Trial and found this very helpful . I just finished mine last night with the Jury coning back  just as the Judge was to order them to the hotel for the night with a not Guilty verdict (crown asked for the jury to be polled don’t know if that is normal ?)

 

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6 minutes ago, serdog said:

Thank you so much for this  . I just ran my first Jury Trial and found this very helpful . I just finished mine last night with the Jury coning back  just as the Judge was to order them to the hotel for the night with a not Guilty verdict (crown asked for the jury to be polled don’t know if that is normal ?)

 

Congratulations! Good job!

Yes, the "losing" side will sometimes ask for a poll to make sure that the verdict is unanimous. 

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I finished a jury trial in a criminal matter in the U.S. Jury selection went very rapidly in my County (New York Supreme). The Judge directed the voire dire for the most part. The litigants were only allowed to ask followups. 

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This thread makes me sad and angry thinking of the new legislation re: peremptory challenges. 

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10 hours ago, lioness said:

This thread makes me sad and angry thinking of the new legislation re: peremptory challenges. 

That is a big killer long rant short the Goverment when for the "quick fix" and will harm accused persons in the long run. 

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23 hours ago, lioness said:

This thread makes me sad and angry thinking of the new legislation re: peremptory challenges. 

I was told by the feds that eliminating protections for accused persons will end racism.

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On 2018-05-10 at 12:30 PM, Mountebank said:

I was told by the feds that eliminating protections for accused persons will end racism.

They lied!

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