Better Call Saul!! My Time on Jury Duty
I had jury duty for two days this week. I was not selected to serve on the jury but I did get empaneled and asked questions by the judge, assistant district attorney, and defense attorney. This is the farthest I’ve have made it in the trial stage.
As indicated above, the trial was a criminal trial. San Francisco keeps criminal court and proceedings in an entirely different building than civil proceedings. The buildings are in entirely different neighborhoods. I don’t know if judges alternate between the civil and criminal buildings. Some states have lower level judges handles both civil and criminal matters. Other states make distinctions between civil judges and criminal judges.
The case involved misdemeanor DUI. There were two counts. One count involved a more subjective test of whether the the defendant was too impaired by his drinking to drive. The second count was a more objective test about whether the defendant’s blood-alcohol level was .08 percent or above. The first count seemed like it was going to involve testimony from police officers about field sobriety tests. Many potential jurors were confused by the distinction between the subjective and objective tests when it was first explained.
One of my really good friends in law school is a criminal defense attorney but not in San Francisco. She told me (after I was dismissed) that DUI trials usually go to trial when the defendant absolutely refuses to accept a plea because DAs rarely drop DUI charges. There is not really a lesser available charged, only DUI or nothing. My friend said that both the subjective and objective are brought but if the defendant is found guilty of both charges, he or she will only receive one sentence because of double jeopardy issues.
DUI is a rather interesting misdemeanor because many people have very strong opinions about the charge and also have experience with the charge. I was shocked by the number of potential jurors who knew someone who was seriously hurt or killed by a drunk driver, knew someone who was arrested and/or convicted of a DUI, and often enough both. The Defense lawyer would frequently ask potential jurors if they understood that it was legal to have an alcoholic beverage and drive in California as long as your abilities were not diminished or your blood level did not raise above X. Many people said that they understood this in theory but felt that you shouldn’t drive at all if you had anything to drink. Others admitted to drinking and driving.
The potential jury came from a pool of 75 people. The pool represented both old and knew SF. Most people in the pool either lived in San Francisco for their entire lives or close to it or they were hear for 1-3 years. There were very few people like me who were hear for something around 6-10 years. The newer residents tended to be connected to the tech economy and highly educated. The older residents tended to be more working class and only have some college education at most with a few exceptions.
Day One started with a random empaneling of 12 jurors and the judge asking a series of questions to them and the rest of us who were sitting in the “audience” section. The judge seemed to have a theory that jury duty is a grave and serious responsibility and that there are very few excuses worthy of being dismissed. One potential juror said she started her third year of law school on Monday and could not miss class. The judge said that she should want to participate as a juror because she will need jurors one day potentially but eventually let her go but ordered her to reschedule during a break from school. He did not necessarily excuse people who knew victims of drunk drivers and went on to stress how this is just one case and not related to their experience. He would ask people if they were biased towards the defense or the prosecution and if someone said that they were, he would grill them about being impartial and most people would back down and say they could be impartial.
The Defense and Prosecution then had a chance to ask potential jurors some questions as a group or as individuals.
After this came time for the premptory challenges. Lawyers are allowed to strike X amount of jurors without cause. Then they have to give cause if they want to strike anyone else. California is wonderfully liberal with the number of challenges you get. My criminal defense friend told me that for an ordinary misdemeanor, each side gets 10 preemptory challenges. The number I learned for federal court in law school was three. California law also requires a unanimous verdict from a 12 person jury to convict for a misdemeanor. This is not very common.
The way this round went was the defense lawyer thanked a potential juror and said they could go. The clerk would call up a new potential juror from the audience and that person would be asked questions by the prosecution and the defense. The judge would then ask both lawyers if they wanted to remove the newly empaneled potential juror for cause. If both sides said no, the prosecution would then dismiss someone without case. Rinse, lather, and repeat until you have a jury.
The Defense lawyer would ask potential jurors if they understood it was legal to drink and drive in California and whether they would be biased if the defendant admitted to having any alcohol in his body. He also asked questions about the presumption of innocence, the burden of proof, whether they would be biased if the defendant did not take the stand, and also whether they could be Henry Fonda in 12 Angry Men and stick to their guns at 4:30 on a Friday if they disagreed with everyone else. The Defense lawyer also wanted to see how skeptical people were of technology.
The prosecution asked questions about whether people understood the difference between circumstantial and direct evidence. He also wanted to make sure jurors treated the testimony of cops just like everyone else. I thought this was interesting. He asked about people’s experience/views with police in general and whether they had any opinions of DUI checkpoints.
I got called up on late Wednesday afternoon. I introduced myself and said I was a plaintiff’s lawyer in antitrust, personal injury, employment, and product liability cases. I also said that I had some issues on public policy grounds with DUI checkpoints because I felt like they were more for revenue generation than public safety. The judge asked if I were sworn whether I would use my knowledge of the law to dominate the rest of the jury. I said I would not. He interestingly did not ask this of the much older and more experienced lawyer who was empaneled. The defense lawyer asked me his normal questions and I responded. The prosecution asked if I could find someone guilty despite by public policy protest against DUI checkpoints and I said I could. At this point, I said that some of my friends were criminal defense lawyers but not in SF and they had strong opinions about the prosecution. The ADA asked my opinion on the prosecution. I replied that I felt the prosecution was necessary because people did commit horrible crimes and those crimes deserve punishment. I said that some of the clients at my firm did have criminal records including DUI and that I felt as a plaintiff’s lawyer I was representing the little guy and I had a slight bias to sometimes seeing criminal defendants as the little guy.
The prosecutor dismissed me with his next preemptory challenge which was right after he finished questioning me. My criminal defense lawyer friend told me she was not surprised but she loved my answer on DUI checkpoints and that would make her want to empanel me as a juror.
The whole process was interesting but a bit long and tedious. I felt both lawyers had a tendency to ask a question in 60 words when 10 would do. The defense attorney always seemed rather fond of turning the Henry Fonda question into a shaggy dog story. Many jurors were frustrated with the process by the end of the second day and some people expressed visible shock and dismay when then judge announced a 90 minute lunch break on Day 2.