My very first trial was a misdemeanor embezzlement case. Actually it was charged as an attempt to pass an unauthorized check. But let’s not quibble about the small stuff.

I had been out of law school for about a year. The trial was about 2 months after I became a Deputy Public Defender. I was so green I could have grown moss around my ears. I had never even seen a trial.

I was a tad nervous. I had no idea what the practical procedures were. I had a general idea (I did watch “The Defenders” when I was a kid.) But the actual courtroom agenda was new to me.

I figured that since the prosecution had the burden of proof, they would always go first in any presentation. That included the initial picking of a jury. I just had to watch, listen and learn (real quick!)

The prospective jurors filed into the courtroom and then were called, one by one, into the jury box. It was an interesting process at that time. A squirrel cage with little cards that held each prospective juror’s name. The clerk would spin the cage, open the little door, pull out a card and read the name. A groan from somewhere in the audience and a person would rise and go to a chair in the jury box.

Once the jury box was full, the judge would ask the usual questions–name, occupation, marital status etc. At that time, in this State, the lawyers did most of the questioning of the jurors. A little pastime called voir dire.

Voir dire is the questioning of each juror in open court. It can be intrusive. It can be funny. It can be DULLLLLL. It is a skill that takes years to learn. How do you get perfect strangers to answer questions that appear to be absolutely irrelevant to anything? How do you get them to talk about their biases? I think I spent more continuing education time in voir dire classes and demonstrations than any other subject offered.

But on that day, I expected the prosecutor to go first. She didn’t.

The judge looked me right in the eye and said, “In my courtroom, defense begins the voir dire.”

I was stunned. I put my hands on counsel table to push myself up from my chair. Two very wet hand-prints remained. My client almost fainted. I took a very deep breath and walked out in front of twelve people and started asking inane questions.  I didn’t do very well at voir dire but I did win the case. Thank the universe.

Over the years I learned a few things. First, words matter. Every judge I was ever in front of for trial would ask a prospective juror if they could be fair. In nearly 30 years and over 250 trials, I heard one person admit that they could not.

Fair, to jurors, generally meant that both sides would be treated in the same manner. In criminal matters, in this country, that is NOT the law.

The law is that the defense is entitled to the presumption of innocence AND that the prosecutor must proof their case beyond a reasonable doubt. That is not FAIR. That is not an even playing field.

The Constitution was written that way to protect individual citizens from the extreme power of the government.

What the judges should be asking is if a person can be impartial. Can they listen and not judge based on an emotional response to one side or the other. Can they reserve judgement until all the facts are presented to them and then unemotionally determine how those facts fit into the legal precepts that the judge will give them? Can they require the prosecution to PROVE its case beyond a reasonable doubt. The presumption of innocence means that the attitude towards the prosecution must be slightly skeptical. Like a science project. Like a crucible.

I have crusaded for the elimination of the word “fair” and, on occasion, had a judge see the logic of my argument.

The next time you are called to jury duty, think about being impartial not fair.