Summoned by my own petard


“A fox should not be on the jury at a goose’s trial.”

— Thomas Fuller

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

— Thomas Jefferson

States select jurors in different ways, with names sometimes drawn from voter registration rolls, BMV records or tax lists. Names are randomly selected and those persons are sent a notice that they have been selected for jury duty on certain dates. They are also sent a jury questionnaire which asks a variety of background questions. Information in these jury questionnaires is then provided to the attorneys in the case to use in the jury selection process.

Most jury trials that occur in Ohio happen in criminal cases either in the General Division of the Court of Common Pleas (in felony cases) or in the Municipal Court system (in misdemeanor cases). Civil matters also sometimes require eight person juries. In the Probate/Juvenile Court, we rarely ever have the need for a jury trial. Juveniles charged with delinquencies only have the right to a jury trial in juvenile court if they are alleged to be a “serious youthful offender,” and thus face a suspended adult sentence in addition to their juvenile disposition. A very small number of adult misdemeanor criminal cases may be tried in juvenile court, and those defendants have the right to a jury also. In probate court, a small number of matters, such as will contest actions, also may be tried to a jury.

Earlier this year, our probate court saw its first jury trial in several decades, and the juvenile court in Delaware County has not had a jury trial in more than 20 years. The probate court has another case set for potential jury trial later this year, and in preparation for that possible trial, we asked the office of jury commissioners to draw a list of names for possible service in that trial. After selection of those names, I send a letter to each of the prospective jurors, letting them know that their name has been drawn, thanking them in advance for their possible service, and letting them know the dates that they might be needed.

When a case proceeds to a jury trial, the first step is jury selection. Jurors are addressed by the judge and then by the attorneys for each side in the case. Attorneys will frequently ask questions about how jurors might react to certain issues that will arise in the case. Depending on the answers to those questions and the information that the jurors provided in their questionnaires, attorneys might seek to excuse those jurors from the case.

There are two ways that a juror might be excused once the jury selection process has begun. First, the juror may be excused for good cause. This usually occurs at the request of one of the parties to the case. The judge may grant or deny that request. If the judge grants the request, it is because the judge believes that, based upon a response or statement from the prospective juror, the juror could not be fair and impartial in the case. The juror may know the defendant or a prospective witness. The juror might have a financial interest in the case. Perhaps the juror already has information about the case and is therefore biased.

In other cases, the juror may not have indicated that they can’t be fair, but they may have made a statement or provided a response that leads an attorney to believe that they could be adverse to the attorney’s case. Each side has a set number of “peremptory” or automatic challenges. They need not provide a reason for making these challenges and once made, the juror is excused. The only limitation is that the attorneys may not use their peremptory challenges to exclude a class of jurors, such as all the jurors of one race.

It used to be the case in Ohio that lawyers and judges were automatically exempted from jury duty, but the law was changed several years ago, and that exemption no longer applies. There are still several exceptions to jury service, including for persons who are over age 75, and those who are on active military duty. Others may claim an exemption for a medical issue, a financial hardship, because they are caring for an ailing relative, and for several other reasons provided by statute.

So, imagine my surprise when the list of prospective jurors came back from the jury office, and one of the names summoned for a trial in front of me, was … me! Now, I obviously can’t sit as both judge and juror, but I also don’t get out of jury service that easily. My name simply goes back into the jury pool for possible selection in another court. In fact, I was summoned to jury duty just a few years ago in front of Judge Gormley, though I was not, in that term, ever called to serve in a case.

Much energy is expended in the legal community on jury selection, both in preparation and in the process itself. Classes are taught in law schools, seminars focus on the subject, entire books are devoted to the topic and in some high-profile trials, experts are hired solely to consult on the process of jury selection.

On the flip side, many attorneys scoff at the so-called “science” of jury selection arguing that there is simply no way to know how people are going to react to the evidence that is presented to them in the course of a trial. Some lawyers, particularly in cases where the stakes are not as high, are happy to take just about anyone as a juror. Ultimately, the only way to know whether your jury selection strategy works is to try the case and see what decision the jury makes.

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette, a sister paper of The Galion Inquirer, since 2005.

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