The Velvet Hammer™ Podcast

Decoding Voir Dire Part 4 | The Jury Selection Series

• Karen Koehler and Mo Hamoudi • Season 5 • Episode 48

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Episode 48: Decoding Voir Dire Part 4 | The Jury Selection Series

Peremptory strikes look simple on paper. In practice, they are among the most strategic and controversial aspects of jury selection.

In Part 4 of the Decoding Voir Dire series, Karen Koehler and Mo Hamoudi break down how peremptories actually work, why Batson challenges matter, and how bias, intuition, math, and psychology collide in real time. They talk through when peremptories protect access to fair juries, when they cross the line, and why stereotypes are both unavoidable and dangerous if you rely on them too much.

This episode digs into tactical counting, protected classes, juror psychology, and the uncomfortable truth that jurors often surprise you for better or worse. If you have ever thought jury selection was mechanical, this conversation quickly disabuses you of that idea.

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Hosted by Karen Koehler and Mo Hamoudi, trial lawyers at Stritmatter Law, a nationally recognized plaintiff personal injury and civil rights law firm based in Washington State.

Produced by Mike Todd, Audio & Video Engineer, and Kassie Slugić, Executive Producer.

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Mo Hamoudi :

Catch him distracted because he normally is distracted. No, no, I'm ready to go. I'm ready to go. Whatever. Okay.

Karen Koehler :

All right. This is session number four on Vordeer. We're going to talk about peremptories. And what is a peremptory?

Mo Hamoudi :

Peremptory is the a num is is the I thought that's so crazy. Every side gets a pr uh a number of peremptories to remove a juror from the jury, regardless of the reason. You don't really have to accept explain the reason unless it is a pretext to remove them because of a protected class. They're a part of the protected class.

Karen Koehler :

It's called Batson.

Mo Hamoudi :

Batson. And Batson's a criminal case and involves a criminal defendant who was African American who said they removed all the black jurors from my jury. And I am not being judged by a jury of my peers. And the case went up, and the court said, yeah, you can't do that. And then later on, it was extended to other protected class, which is gender. You cannot remove people because of their gender. But the Washington Supreme Court has expanded it with a rule, Karen. Tell us about it.

Karen Koehler :

Well, the Washington Supreme Court actually, some people on it would actually like to get rid of peremptories altogether, uh, because they can be used for these discriminatory purposes, and they're hard to hard to catch that unless you're counting numbers alone. Uh I'm against removing all peremptories. I think peremptories are really good, especially when it's hard to get people off for cost. Uh, but I've seen a lot of abuse. And I mean, I've had types of people that I periodically have not allowed on juries or uh made a conscious effort to like get rid of them. So I want to talk about how this goes. So there's a lot of philosophy of how to do peremptories. The judge will tell you at the beginning how many you get. Normally it's three per side. However, if it's like one plaintiff and five defendants, that's not gonna work. They're not gonna get 15 and you're gonna get three. So you have to bring motions and you have to the judge will negotiate that. Normally, the combination of the defendants will be the same as the combination of the plaintiffs. So if the plaintiffs are gonna get three, the defendants are gonna have to share three. If the defendants are gonna get five, defendants are gonna have to share five. Maybe a judge will be nice and give them one extra, but normally they should be about the same split. Um and then there's other types of rules on that, like how do you make a peremptory? Um, are they in secret? Uh do you have to tell, do you have to say, you know, who's coming up or not? So how do you do it, right? Uh normally you say plaintiff will think and excuse jury number so-and-so, if you're gonna do that in person. If you're not gonna do it in person, then the jury's excused and you just tell the judge what numbers and you go through.

Mo Hamoudi :

Most most most like in criminal court, at least in federal court, um, you get the defense gets ten peremptories by rule. Oh, they are and and and the prosecutor gets six. And and so, but civil's not like that. Civil's completely different. Completely different. And and the practice in criminal court is is that the court does not want you to exercise your peremptories in front of the jury because it's almost like I reject you. I reject you. You know, and so what you do is after the jury has been vaudiered, you write down your peremptories, but you go side by side. So like they have a list, yeah, it goes to let's so I get 10, they get six. Yeah. So they go write six. They put Mike Todd, it comes back to me, I put Karen Kohler, and it goes back and forth. Or we just use the juror numbers, whichever. And then and then at the end of the whole thing, the judge will say the following jurors are excused.

Karen Koehler :

Now wait, no, before you get to the now, we're still on the prompter.

Mo Hamoudi :

Okay, now I'm printing it. Now say I put Karen, okay, as mine, and then I dismiss Karen because she's a woman. Because I don't want a woman, it's a domestic violence case, and I don't want a woman on this gonna sympathize, and and that she's the only woman that's going to be on the jury. Or she said something in her vauder. She said, I'm a survivor of domestic violence, okay? And a judge asks her, Well, what happened? And she says, I was abused by my husband. And okay, well, can you can you still follow the law as I instruct you? Can you be fair and apart? Karen says, Absolutely, I think this is the most important service, and gives the best answer. And I cut her anyways. And they think it's because she's a woman and because of these views. What would you do?

Karen Koehler :

Then you challenge that with Okay.

Mo Hamoudi :

Now, how do you challenge that? Tell us process-wise, how do you challenge that?

Karen Koehler :

Well, in civil, all you just say is, I challenge that.

Mo Hamoudi :

Okay, but then but but okay, so you challenge that. What happens procedurally?

Karen Koehler :

Then the judge, the judge is gonna ask those questions.

Mo Hamoudi :

Okay. The judge is gonna ask me what is the basis? What's the basis? And I have to give what's called a neutral reason. Yes, right? And I'll say, like, oh Josh. It's not because Miss Kohler is a woman. It's not because of this domestic violence. It's that I just got a feeling. You know, I was assessing her credibility, I was asking questions, and you know, I just don't think that she she is the right that's the whole nature of a peremptory, is not to question my pretext. I just didn't feel like she could follow the law and stuff. And then Karen would respond.

Karen Koehler :

That's not good enough.

Mo Hamoudi :

That's not good enough.

Karen Koehler :

Yeah.

Mo Hamoudi :

Because he you are you asked her.

Karen Koehler :

Yeah.

Mo Hamoudi :

So then at that point, the judge can deny my peremptory.

Karen Koehler :

Now, if you had said something like, well, her husband knows the plaintiff, they uh are in the same country club and they golf together.

Mo Hamoudi :

Then you say, Your honor, this is not about Ms. Kohler's gender. This is about something entirely different. They know each other. There's a connection. It's not direct, but you know, removed. And I'm entitled to the peremptory. And then I get my peremptory. Okay. So, but what about some of the tactics behind peremptories?

Karen Koehler :

So here's some of the problems.

Mo Hamoudi :

Yeah.

Karen Koehler :

You gotta be really good at math. You have to count. You have to know you have to know basic counting because you have to know where the ones that you really don't want on. And so you're anticipating in the future, like if I take off this, like if I take off this checkerpiece and this checkerpiece and this checkerpiece, then those big, bad checker pieces are gonna come back and get me later. So you have to make a lot of tactical decisions when you're counting, especially when you get to the forecast challenges, you're counting madly. And I've seen people blow it like big make a big boo-boo, like, oh no, they didn't.

Mike Todd:

Because they weren't paying attention to who was coming up five people fast.

Karen Koehler :

Yes, and correct. So there's a lot of that going on. So if you have a decent enough panel, and then the judge will will, well, this is of cause, well, for cause, we'll do that later. But there can be the other than if it's a ball bats and challenge issue, if I just don't like the way you're looking at me, which that is a category for me. There is something there that is not good, and I'm a very intuitive person, like I'm looking at that. That's a good reason. But normally there's categories of people. I don't want medical doctors on my jury, and they almost always get off because they're too self-important to be on unless it's a medical negligence case, which they all want to be on so they can tank your case. Um uh other employees of an organization. If I'm suing Boeing, I don't want Boeing employees on there, and they and they shouldn't be. They should be able to get off for cause. Um, same with the government.

Mo Hamoudi :

If you're philosophically in the school of thought that that uh discrimination directed, I know this sounds a little crazy, towards categories of people is real in life, okay, you're a fan of peremptories. Because essentially what this whole process is, is to protect access to juries. What I mean by that is that is that like you know that people of color, women, have historically been prohibited from from being involved in the justice process because of who they are, and so preemptories really serve that. Now, the people who, in my experience, I've seen our philosophically disagree with preemptories, believe that the whole process is discriminatory. Because you are discriminating based on something. Well, you're playing stereotypes at that point.

Karen Koehler :

Yeah. Well, what you what I'm doing is, and I think that what makes a good voidier is you have to be extremely fast. This is why you've talked before about how important is it to be fast. Yeah. There is nowhere where it's more important than in voidier. And so what I'm gonna do is I'm gonna go in with stereotype. It's a shortcut for me. Um, I already know. Young jurors, good on liability, bad on damages. Um, people that come from out of the country do not understand anything about monetary justice. Um But but right here Hold on, hold on, hold on. Let me finish. Okay. I have this set of preconceived prejudices that I'm gonna just accept, but I also know as a person in the world that I just need one thing from you. So it's like blink. You are prejudiced. I accept that we are all prejudiced, all of us. Yes. So I don't fight it. I allow that prejudice, and but that's what you there are there to talk to them for because it's just a prejudice. So I will leave on, I have left on so many people that on paper I should have taken off. I've had jurors that are defense lawyers, I've had jurors that are religious, uh, people that have religious uh beliefs, strong religious beliefs. I've had jurors on from other countries that you know came to the United States and became citizens. I have broken every single stereotype, but I don't fight it starting off because I'm just looking for anything I can get, any little piece of information to start off, and I know this category is suspect, but that doesn't mean that they are that I'm gonna keep a prejudice.

Mike Todd:

Well, and I was gonna ask, when that happens, are you waiting for different answers as it goes along? Like if there's someone that you know you want to remove and there's a couple people that might or might not be who you want, are you making choices on that?

Karen Koehler :

When I see a book like this, right, my Angelo, I'm thinking, okay, it's poetry. It's gonna be fluffy. Okay, right? Her poetry is not fluffy, by the way. I'm gonna open the book, glance at it, and see, well, this is actually a book and it is not fluffy. That's how fast it took me, right? So everybody has a prejudice about everything. This is a book, I thought it was a book of poetry. This is a bowl, it looks like it's plastic, it's ceramic. That's how quickly, but our brains, you are crazy if you think that we are don't engage in prejudices and biases. And they're not all negative. That's how we function. We have mental I came into this room, opened the door, expecting to see it look like this. That was my assumption.

Mo Hamoudi :

Okay, so that's a really good example that she just did with the book. Don't judge a book by its cover kind of mentality, right? Okay.

Karen Koehler :

I wasn't even that smart to come up with that.

Mo Hamoudi :

I mean, no, but then but I mean, this is just sort of this is wonderful. Because you, if I know you're on a jury questioner, and then one of the questions is what book, what is the current book you're reading? You say, Maya Angelou, all God's children need traveling shoes. And I go, Oh, he is a sensitive type. He loves, loves, loves, loves, loves. I want him on my jury. He's gonna be a sweetheart, and this is wonderful, Maya Angelou, the poet. But I get focused on that. I make this association, but I don't know deep down there's an experience that you've had which completely colors your judgment at odds with what I'm trying to pursue in my case.

Karen Koehler :

Let me give you another example.

Mo Hamoudi :

Example that.

Karen Koehler :

Here is a prejudice that many plaintiff lawyers have. Yeah. And it started off a lot. I mean, I've been doing this for a long time. They've been injured, they're gonna be sympathetic. They've been in a terrible crash, they're gonna be sympathetic. They know what it's like. Au contraire.

Mike Todd:

Well, I was just gonna say, that's I've seen that one go wrong before myself.

Karen Koehler :

Let me tell you, when people have been injured or gone through similar kinds of things, A, they didn't get paid for it. B, they got their medical bills, and that's all that they wanted. C, they're living with it and they're doing fine, sure, it's not great, but you know, you just have to, life is life. You have to do life. They can be very unsympathetic and very judgmental, even though you thought that they were gonna be the best ones because they were the most similar. So when I'm saying prejudice and bias, we all have it. And you have to have it in order to function in the world. Your brain has to have those shortcuts that it can do, hey, I can I know that this is a carpeted room and that's a wood room.

Mo Hamoudi :

Yeah. This is where my own bias has come against me. I had a person on one of my juries who was placed, was placed on a jury who had experience of law enforcement as a as a youth, never amounted to a conviction, okay? Meaning they were never disqualified because felons can't be on juries, but had been arrested. And I thought this person is gonna understand that the process is unfair. There is a, you know, and they were a person of color, and the person I was representing was a personal color. What ended up happening is that that juror became the uh uh person who was against my case, okay, because they said their experience afterwards was you need to take personal responsibility for your life. Okay? This is not an easy life, and you need to do more and do better, and it was like the complete opposite. And like it showed me that like the cover thinking is just as bad is just as bad the person who comes in and tries to target to remove a juror um because of the color of their skin. Does that make sense?

Mike Todd:

Oh, yeah, totally. You know? But what I was gonna ask is so then you're kind of at the mercy of the questions that you're asking during Baudir to hope that you sort of uncover that kind of thing.

Karen Koehler :

You better fit at it.

Mike Todd:

Yeah, because you, like you said, your stereotype bit you on that one.

Mo Hamoudi :

Bit me hard early on in my career, and I realized it was just I can't do that.

Karen Koehler :

So if if if if attorneys come in in there with their written scripts, they they're not always gonna win. I mean, and sometimes it's simply looking, watching the juror as they're answering the question and watching their face.

Mike Todd:

Yeah.

Karen Koehler :

Um, there people will tell you, people are transmitting. Now, I remember again, a long time ago, I read a book that was written by a guy that that was for the purpose of um telling people how to either get off a jury or undercut the whole system. It was one of those fascist kind of, I don't know if it's a fascism or it was a very anti anti-government, anti-designation.

Mike Todd:

Just an anarchist style.

Karen Koehler :

Yeah. And I read it because I wanted to know and um what they would do and how they would do it. And it if you met someone that was that committed, it would be hard to know. Um because they'll say all the right things. Unless you can pick up on the subliminal.

Mike Todd:

So you're talking about the people that want to get on the jury to mess it up or something, not the ones who are trying to get off being on a jury.

Karen Koehler :

Both.

Mike Todd:

Both, okay.

Karen Koehler :

What I have found is that most people, most people, right? Not all, when they're on those jury panels, they transform from wanting to get off of it immediately to wanting to stay on it at all costs. They will, they will try to articulate they do not want to get off once they're once they've survived. You know, do you have a hardship? Even people that have a hardship and want to get off, they won't make it easy for you to get them off.

Mike Todd:

No, no, no, they won't make it.

Karen Koehler :

It's a psycho psychological.

Mike Todd:

It's kind of weird, like they reverse after they're not let go for the reason they want to.

Karen Koehler :

Because it's it's I think it's a whole compilation of things. Number one, they don't want to be humiliated by by you know, right? A f fear of embarrassment, fear of how we look to other people is an instinct. And I've told you this before, like one time I was at the gym, this is many years ago, when I used to run inside and I'd run fast. I'd run at a bit pace between seven and seven point five on the treadmill for like an hour, hour and a half. And I had to get I wanted to go get a drink at the waterfront, ran off, got off, forgot that the treadmill was still going, got on it, and just went flying. What is the first thing I did? Did I look at the scabs on my knees and my arms? No. I looked up to see who saw me that happened to me. That's instinct. That's your that's an instinct that you cannot control. And so part of it, I believe, is the the peer pressure of being in there and not wanting to look like you got taken off. So that's a very big part of it psychologically. Second is is that I think there's some curiosity. Once you once you've tried to get off of it and you haven't been successful because like your you know, your plan wasn't good enough, or your trip wasn't wasn't during the time that we're gonna be in trial, or you know, your employer is paying for you, there's kind of an ex a an initial acceptance that's easily satisfied when you start seeing like, well, this could be interesting.

Mo Hamoudi :

I I I mean, I think that like for me, it's that you have to be authentic with the jurors. Like you have to, you have to be authentic with them. And you're not gonna be able to solve that. This is why, in my opinion, I think like really vaudier is a crapshoot. It's hard because you have people start one place, end up in a completely different place because of the process. And what you can do is you want to, if you tell people you're this is important, this is very significant, and you empower them and say what you do is gonna really impact people. I think people want to step up and they want to be part of that and they want to do the right thing.

Karen Koehler :

It is a it is a mob mentality though, because the longer they're in there, they're watching people, and so the people stop becoming strangers to oh, that's the guy with the glasses and the backpack, and that's the person that you know, they they all start to um kind of connect and uh bec form a form a group. So there's a group process and then there's that embarrassment process, and they don't wanna they don't want to get off.

Mike Todd:

And I can say from my own experience that that curiosity it's it it kicks in hard once you're in Boisier. you know it's it's like being it's like being on the TV shows at that point you know you start feeling like what you've seen and you're experiencing the real thing too so I mean that happened to me I mean I mean I wasn't trying to get off or anything I I was just going through road year but I did start thinking God it'd be cool if I got on the jury you know and and I'm answering the questions and then there's you know it kind of looked like I wasn't going to be on it yeah and then everything started moving real fast and all of a sudden I was on it we weren't sure which one's gonna be picked was there going to be an alternate next thing I knew I was on the jury and they were you know doing opening remarks.

Karen Koehler :

You know you always hear well people are super scared of public speaking it's like one of the number one fears but for some reason during the jury selection process even though you are in public and sometimes with a lot of people most people are not their their fear is tempered because everyone Yeah no it's a group you're not you're not singled out. Yes and so you don't see people that have extreme fright in speaking um people just kind of start doing it and there's a comfort in the fact that what's happening now that said they will resent the lawyer that is bully or badgering them or trying to make them feel negative or ashamed. Yeah so just remember like you're yeah you're not talking to one at a time in an isolated room. So peremptories though when you get to the point where you got to get them off you should have some kind of a grid you should be able to count to see who's coming up and you and you better know how many you know strikes for cause that you can get if you haven't already got gotten them off. Well you should have tried to get them off but we're gonna talk about uh cause challenges separately okay okay part four done okay

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Karen Koehler

Co-host
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Mo Hamoudi

Co-host

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