A couple weeks ago I tried a criminal case that alleged my client had unlawfully taken a trophy deer (by hunting with an unlicensed guide) and had aided a thirteen-year-old girl unlawfully take an elk by using his tag on an elk the State said she killed. The jury found my client NOT GUILTY on both counts, but what amazed me was the fact potential jurors had lied about their own criminal charges.
A questionnaire sent to persons called for jury service were asked a very simple question: Have you ever been a defendant in a criminal case? Three of the 24 persons who answered "no" actually had been charged with crimes. I had their records. One other juror admitted he had been a criminal defendant but said it involved only a "bar fight." This guy had several other charges in other cases – none of which he disclosed.
They do the same stuff we all do when confronted with our failures. They minimize their own misbehavior.
Knowing this can be an important guide when making peremptory challenges. Those are the challenges for no particular cause that has to be disclosed. My thinking at the time was that a man who did not want to disclose his DUI charges would probably line up more with my client than the State’s Fish and Game "detective." In the end, I left one of those "non-disclosers" on the jury, and I think it was a good call. People who have had a run in with the law are less likely (I think) to believe the Defendant got a fair shake by those investigating his case. If a juror thinks the defendant was not treated fairly, the state’s case will suffer. When that happens, the defense has a chance. And when you have a chance you need to exploit that opportunity to hear the magical words, "not guilty."
By the way – those Fish and Game officers tend to wander a ways from the truth too.
In this case, the investigator swore he had NOT threatened to go and arrest the thirteen-year-old girl who allegedly shot the elk. When I asked him, under oath, he protested he did not tell her father he would charge her with the crime – a fact that her father (who was not a defendant in the case at trial) testified was false. He said the Fish and Game officer had done exactly what he swore he had not. He was telling that jury they could not believe the officer.
When it was all over, the jurors did not believe the Fish and Game guy. They believed he had lied about the threat. They chose my client’s version over his. When that happens the State loses. In a sense the case was more about the F&G officer’s testimony than it was about who shot the elk – by the way, it wasn’t the girl.
Here’s my take away – the best defense at trial is preparation. Be ready for the jurors who can’t recall having been defendants, and be ready for investigators who have threatened their prey with arrest or worse if they don’t cooperate.
Be ready for trial. Know all the facts. Know the law, and figure out how the facts of your case and the law collide. Then get ready to win your case.