Tiger King: Impartial Juries in the Age of Netflix

Now that I have your attention, let’s talk about jury trials and voir dire. Every state has different practices when it comes to jury trials, so let’s focus on South Carolina and how the courts try and ensure that litigants get a fair and impartial jury.

If you want to skip the procedural stuff, skip down to Jane Smith’s Trial

Let’s look at the entire process of a criminal case and take a murder as an example.

Jane Smith murders someone

Step 1: Law enforcement investigates the case. They get tips, they take leads, they take witness statements, forensics, etc. At some point law enforcement needs probable cause to get an arrest warrant for Jane Smith. Probable cause is a relatively low threshold.

Step 2: Law enforcement completes a warrant and takes it to a local magistrate/municipal judge. That judge reads the warrant and determines if there is probable cause that Jane Smith committed murder. If the judge thinks there is, then that judge signs the warrant. Law enforcement now serves that warrant on Jane explaining what they allege she did and what they are charging her with. She is then arrested and taken to jail.

Step 3: Jane Smith is booked at her local county jail (people go to jail while they wait for their charges to be resolved; people go to prison to serve their sentences; typically any sentence that is 90 days or less will be served at jail and not prison). Jane Smith will need a bond set to determine if she should be released from jail pending her charge or if she should wait in jail until the charge is resolved (in S.C. a magistrate/municipal judge sets 99% of bonds, but murder must be set by a Circuit Court judge). At the bond hearing, the judge is focused on two things: is Jane Smith a flight risk (i.e., will she show up to all of her court dates) and is she a danger to the community (i.e., will she commit other crimes/acts while she is out on bond). If the judge sets the bond, then it will be either a surety or a personal recognizance. Surety means that Jane has to put down money as a way of showing that she will return to her court date (a bonding company usually does this). Personal recognizance is Jane promising to return to court (no money down).

Step 4: Jane Smith, if she requests, will have a preliminary hearing. This is a hearing in front of a magistrate/municipal judge to determine if there actually is probable cause for Jane Smith to be charged with murder. If the judge finds there is PC, then the case continues. If not, then it is dismissed; however see Step 5.

Step 5: If the prosecution and defense do not work out a plea deal, and the case isn’t dismissed, then the prosecution has to prepare for trial. The case must be indicted by a grand jury before it can proceed to trial. A grand jury consists of 18 members, and 12 of them must vote to indict. The threshold for this is the same as the warrant and preliminary hearing: probable cause. If less than 12 vote to indict, then the case is “no billed” and it is over. If it is indicted “true billed” then the case proceeds to trial.

Step 6: The first day of trial usually consists of picking a jury. First, all of the jurors sit in one room and a judge makes sure that each juror is qualified to be a juror (i.e., a resident of the county, don't have certain convictions, not a court employee, etc.). Then the judge will determine if there are any jurors who are exempt (even though they are qualified to serve, they may choose not to). One example is people over the age of 65. They can choose not to serve if they wish.

During the qualification phase, all of the attorneys and prosecutors will be watching and taking notes on every juror. This is the first time they can see and hear what they have to say. For example, if Juror #61 stands up and asks the judge if she can be excused because she has a sick child at home and really doesn’t want to serve, but the judge denies this and makes her stay. Attorneys will make a note that Juror 61 does not want to serve and this might influence whether they put her on one of the juries. Also remember, multiple trials are scheduled for the same day. So there could be multiple prosecutors, defense attorneys, civil attorneys, etc. all sitting in.

Once the judge qualifies the entire jury pool, then the court will pick a panel to select individual jurors for each individual case. In some cases, this will consist of the entire pool of jurors, or it can be narrowed down to a number of jurors to choose from.

In S.C., the judge conducts voir dire. Voir dire (French for speak the truth) are the questions that the judge asks to all of the jurors about this specific case. These are some typical voir dire questions in magistrate court:

If, for example, Juror #3 stands up and says I am related to State’s Witness, then the judge will call that witness up and ask if they can still be fair and impartial. Even if the witness says that they can be fair, the judge might still disqualify them from that case, just to be cautious.

Each side will give the judge a list of questions that they wish to be asked and the judge may ask them or may not. Once the judge has asked the jurors all of the voir dire questions and they have answered, then it’s time to pick a jury.

It may vary by court, but let’s just assume that each party gets 4 strikes. What is a strike? There are two kinds: peremptory and for cause. Peremptory are final and a party can use them for just about any reason (e.g., the juror said he was a teacher and there will be evidence that my client was mean to a teacher). Peremptory strikes cannot be based on a protected class (e.g., race). See Baton Motions. A party has unlimited strikes “for cause.” So think about the previous example of Juror #3 who is related to State’s Witness. A party would likely try and strike them for cause because of the relationship, thus saving one of their peremptory strikes.

Jane Smith’s Trial

Back to Jane Smith on trial. Assume Jane Smith was all over the television for this murder. Assume that there was a documentary and it painted her in a bad picture. Assume that this documentary was plastered all over the country and everybody saw it. How does Jane Smith get a fair trial? This wouldn’t be the first time that a famous person went on trial and everyone was familiar with the case (e.g., OJ Simpson).

The first step that Jane Smith’s attorney might try and do is to move the trial outside of the county it is in. That could help water down the jury pool of witnesses who are familiar with the documentary. A judge might or might not deny this request. But because the documentary was nationwide and statewide, it might not make a difference.

So then the next most important process will be jury selection and voir dire. Go back up and look at the example of some voir dire questions. Those examples are very, very limited. In a case such as Jane Smith’s there will be dozens if not hundreds of questions (in SC the judge gets to decide what to ask). So on top of the regular voir dire, there will be questions asked to the jury that consist of:

• 1. Have you seen the documentary?

• 2. If so, do you have an opinion on Jane Smith?

• a. What type of opinion?

• b. Are you open to changing your opinion?

• 3. If so, do you have an opinion on anyone else in the documentary

And on, and on, and on….

These questions are extremely important for the attorneys to determine which jurors are impartial and which have already formed an opinion (and I know you’re thinking: what if the jurors lie? The jurors are under oath to tell the truth and can be held in contempt for lying or misleading the court).

The attorneys could ask the judge to strike any juror who has seen the documentary. The judge may agree or might not. If only 12 of 300 jurors have seen it, then it wouldn’t cause much harm to strike those 12. If all 300 have seen it, then the judge will have to weigh that as well.

After the judge/attorneys ask potentially hundreds of questions to the jurors, then the selection begins. Randomly drawn out of a hat, each number is called. The attorneys prepare their notepads so they can keep track of how many strikes they use so that they don’t run out.

“Juror #93”

Juror #93 stands up and states their name. The attorneys look down to their notes and see what they have written from both qualification stage and the voir dire stage. Assume Juror #93 answered that he has seen the documentary and has a negative opinion of Jane Smith. The State goes first: “Please sit this juror Your Honor.”

Then it is Jane Smith’s turn. “Please excuse this juror for cause Your Honor.” The judge has to decide whether the juror is not impartial and thus shouldn’t sit on the jury. The judge agrees: “this juror is stricken for cause. Counsel still retains all peremptory strikes.”

This process will continue until 12 jurors (and some alternates) are seated. If Jane’s attorney uses up all 4 strikes, then they cannot strike a potential juror unless there is cause (same with prosecution).

After the jury is picked, then the jury is sworn in for the specific trial, and it begins….

If you have made it this far, then I recommend you listen to some great music by my good friend Drew Dixon.