Selecting a jury for a child pornography case will be extremely difficult. Unfortunately, not every jurisdiction allows for attorney conducted voir dire or an voir dire statement by the attorney. Clearly, in those jurisdictions, the attorney’s task is a little easier. Regardless, the task is clear: the defense attorney must hammer home to the jury pool that what they will hear and see will be some of the worst things they will encounter. There is no reason to sugarcoat it. Be blunt. They must understand that it is OK to say that they can’t handle it. Not everyone is cut out for this and in fact, most aren’t. In other words, its very acceptable to say no, I cannot serve on this jury.
In those cases where the attorney’s have limited participation in voir dire, the attorney should have a conference with the court ahead of time to discuss the voir dire process and how difficult it may be to pick a jury. Thankfully, New Jersey has allowed more attorney involvement in the jury selection process but it is not perfect. Some judges will allow both sides to draft supplemental voir dire questions. If you submit 20 of them, I doubt the court will use even half that number so while the attorney should get creative, you don’t want to be seen as reaching. Keep it simple. Also, check with the State to see what they will be asking for as you may find yourself on the same page with some of the questions.
The State may focus their questions more on computer knowledge than the content of the files. They may not want someone that knows little to nothing about computers as technical terms may go over their head. Neither side may want computer experts who will second guess either side’s argument because they think they know it all. Thus, most of the jurors picked may wind up in the middle.
Crafting questions to find out if prospective jurors are too squeamish for this type of case is not difficult. The difficulty comes from those jurors who are too wishy-washy to make a decision. This comes from the prospective juror trying to balance their feelings about the charges versus their civic duty to serve the jury and to please the judge who they see as an authority figure. If a judge asks a prospective juror if they can serve and they say “I guess so” or “I think so”, most judges will accept that answer. It is the defense attorney’s job at that point to question that juror and make it clear to them that they need to be 100% sure and if they are not, it is OK. If they get picked, they cannot raise their hand in the middle of the trial to tell us that they changed their mind. These files may be the most horrific things they will ever see in their life but the defendant must be given a fair trial and if they would be better suited for another case, its OK to tell us that. In my experience, 9 out of 10 prospective jurors will indicate that they shouldn’t serve after it is explained to them like that.