October 24, 2018 Articles

Musings on the Unpredictable Practice of Jury Selection

Or, “Ought there be a law?”

By Samuel W. Silver

At various points in my career, I have heard that somewhere out there in the world of trial lawyers, there is a breed that is so courageous or cavalier or reckless or whatever that, when given an opportunity to question potential jurors and exercise strikes to affect the makeup of the panel, this breed says, “I’ll just take the first 12.”

I have been at this for nearly 30 years. I have tried cases in state and federal courts in multiple jurisdictions. My trials have ranged from itty-bitty civil cases to death penalty cases, with a lot in between. I have yet to encounter a representative of the legendary “I’ll just take the first 12” breed. Thus, the baseline assumption underlying this article is that jury selection actually matters.

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