What do You Look For When Interviewing a Juror in a Sex Crimes Case?
Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.
Sex offense cases are won or lost during jury selection, and frankly sometimes they are won or lost before you enter the courtroom. What I mean is when they pick the venire panel, that’s the panel you pick six jurors from in Florida. If the venire panel is filled with people who are predisposed to convict, then they are going to convict if they sit on the jury. What I do, and what I teach other lawyers to do, is to take their time during jury selection. There is tremendous pressure on the lawyer to hurry up. I’m not the conductor on the railroad that sends people to state prison with convictions based on false accusations, so I’m going to take my time. Somebody’s life and liberty is on the line. First, I believe that jury selection needs to be longer than most lawyers are willing to spend time on. I think that jury selection in sex offenses should take at least a day, and in many cases at least two.
Judges don’t want to hear that. They want to hear that you can pick a jury with both sides doing everything within three hours. That’s not realistic. The thing that makes my jury selection longer than most lawyers when it comes to sexual battery, or lewd and lascivious types of cases, is that I ask a series of questions that are psychology applied in the courtroom. Applied courtroom psychology is one of the single most important weapons a defense lawyer can have when it comes to a combat of the jury trial. It’s clearly important to detect hidden biases that people either:
- Do not want to disclose because they want to convict somebody regardless of the evidence; or
- Biases that they may not be even aware that they have.
I tend to ask people questions that may sound odd, such do you have any bumper stickers on your vehicle, and if you do, would you please raise your hand. For those that raise their hand, I ask what bumper sticker they have. Simply getting an idea of how that person thinks is a great help in determining whether or not they will be a fair juror. If someone has a fully innocuous bumper sticker on his or her car, it may not mean anything at all. If someone has a bumper sticker on his or her car that says survive rape abuse, I’m not sure I want that person on the jury. They are going to have a paradigm and a view that it’s the defense’s burden to prove innocence, when that is not the case at all.
Other types of questions that I would ask of venire panel members while selecting a jury that are psychological in nature are questions such as where do you get your news? Someone who gets their news from CNN has a very different worldview than someone who gets their news from Fox News, and possibly both of them have a very different worldview from someone who gets their news online at a site such as Reddit. Asking jurors questions that seem very indirect but are of a nature that involves applied psychology is critically important. Because of this, my jury selection takes a lot longer. My jury selection involves a series of questions designed to elicit bias, especially unconscious bias, where the prospective juror being asked a question has no idea of what I’m actually doing. This is very important because they can’t block against it, and give false answers in order to sit on a jury with the hopes of convicting someone.
You’d be amazed at the number of people who would try to sit on a sex offense jury just so they can convict somebody, even if the evidence is weak because they believe that, for example, children don’t lie. Anybody that believes that children don’t lie has never had a child. Asking the right questions is critical during jury selection, and critical for the outcome of the case. As Tony Robbins puts it, questions are the answer. During jury selection, I ask a lot of questions.
Does Everyone Convicted of a Sex Crime Have to be Listed on The Sex Offender Registry?
Not everyone convicted of a sex crime must be listed on the sex offender registry, which is a common misconception. They assume that if the charge is a sex offense, that there is an automatic registration and designation as a sexual offender, when that is not actually true. Let me give you a few examples. Someone may be charged with an offense that is under the sex offender statutes, but does not invoke sex offender registration and designation, and does not invoke sex offender probation either. An example of a sex offense like that would be Florida’s indecent exposure statute under 800.03. Another example where someone would not have to be designated as a sex offender, even though they are charged with an offense that normally would lead to sex offender designation and registration, are those cases where someone has a good legal team that is highly skilled. That legal team is able to put up a defense that is sufficient for the state to justify a substitution of charge to something that is not a sex offense and does not subject to sex offender designation and registration. There are other types of things that apply as well, whether they are Romeo & Juliet Laws, or cases where charges are reduced from a registration requiring statute to a statute section that does not require sex offender designation, registration, and probation.
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