These suggestions were passed on to me by an excellent, experienced attorney who wishes to remain anonymous:
1. In jury selection you will be engaging in several efforts at once -picking the jurors who are best for your case, educating the jury, developing your challenges for cause, figuring out who these people are, and letting the jury know you are way cooler than the DA. On challenges for cause, when you develop them the judge may swoop in and try to rehabilitate the juror by asking, “You will follow my instructions, won’t you?” in some menacing fashion from on high, black robe billowing. If this happens during your voir dire, you can may still be able to ask the juror afterwards about his or her original concerns, and revive the challenge. If a juror says “I think I can be fair” or answers the judge’s questions (or yours or the DA’s) in an equivocal way that’s not enough to avoid the challenge for cause. (People v Arnold [96 NY2d 358, 363]). Make sure that your challenge is on the record – in case the judge incorrectly denies the challenge.
If a judge tries to rehabilitate the jurors as a group with general questions after you’re done, you should object or oppose this, and ask for the judge to do individual voir dire as to the individual issues. If the judge refuses to do that, you may have an issue to preserve. More on that below. You should also ask for an opportunity to question the jurors again if the judge rehabilitates them. Yes, t.This may irritate the judge, but that’s not the goal. If the judge doesn’t let you question after the judges’ questions, in the next pass (if there is one) ask the jurors, if they have expressed a concern that presents a challenge for cause, to remember that concern if the judge asks them at the end of your questions whether they can follow his/her instructions.
If you have a challenge for cause issue you want to preserve for appeal (meaning that you believe that the court incorrectly denied a challenge),
YOU MUST EXHAUST YOUR PEREMPTORY CHALLENGES.
Be aware, this can be scary stuff. You have to use all your perempts, but you don’t want to have lots of jurors left to select when you do this (unless it’s a case you are unlikely to win and this is your best issue). You may wind up where the DA has challenges left and you don’t. So you’ll have to weigh how important preservation of this issue is against what your jury pool is looking like and your feelings
about the case.
2. Jury instructions: As you try more cases, you will learn about the different kinds of jury instructions you may request. It’s worth taking a look at the CJI and scanning the charges of general applicability. (http://www.nycourts.gov/cji/index.htm). You can weave some of the language and issues into your cases.
Among the charges you should check out: (I’m not sure if these are the
exact titles in the CJI)
1. Credibility – this will almost always be read to the jury. It helps to know what the jury will be hearing
2. Expanded identification – one witness identification case – you should request this instruction in a one witness ID case.
3. Circumstantial evidence – moral certainty – read this one.
4. Drug trafficking expert – for when the cop testifies as an expert, this instruction reminds the jurors a cop is still just another witness who can be believed or not
5. Consciousness of guilt
6. Failure to promptly complain
7. Justification – regular and use of deadly physical force.
8. Missing witness
Many charges have legal requirements you must meet in order to get the charge. Sometimes judges mix them up. If you are basing your case on a charge, or part of your defense on a charge, such as missing witness, justification, failure to promptly complain, identification, make sure you read the case law about when you’re entitled to that charge (or ask one of the more experienced attorneys to give you the cases or point you in the right direction). Please be aware, with respect to justification, that if the court concludes that you’re not entitled to the charge based on the body of law on justification (and courts will reach this conclusion at
times) you won’t get the charge. With missing witness, even if the judge doesn’t give the charge, you can still argue it. Also with missing witness – careful what you wish for – you have to ask for it at an early enough point in the case that the DA can have the opportunity to bring the witness in. And they might. (For specific phrasing on the timing requirements, check the case law.)
Please also be aware that if you put on a case, the DA may seek a missing witness charge against you if there’s a witness you didn’t call, who was not cumulative, who would be expected to testify for you, and who was available.
