By the time a trial begins, many of the trial's parameters have already been determined via pre-trial hearings that establish the rules regarding evidence and witnesses.

Trials are so complex that I kept both trial notes and a trial diary during People v. Michael Northrup.

By the time trial testimony begins, a jury has been educated, influenced and selected by the attorneys on both sides via jury selection. Both the prosecuting and defense attorneys have spoken directly to prospective jurors on an individual basis for the only time in the trial. Each side has asked questions related to the case that the judge has approved. They have been able to ask specific questions, such as "Have you ever been a victim of a crime?" and "Do you, any family members or friends work for law enforcement?" They have also been able to ask legal questions, such as "Mrs. Smith, if our client Mr. Jones does not testify in this trial, would that influence your opinion one way or the other? If Mrs. Smith says, Yes, either the attorneys or the judge will instruct the jury panel as a whole that a juror may not consider whether or not Mr. Jones testified in determining Mr. Jones' guilt of innocence. The similar follow-up will occur if Mrs. Smith says she would not consider Mr. Jones' decision to testify or not. In that case, the lawyer or judge will confirm that Mrs. Smith is correct to ignore whether or not Mr. Jones testifies in determining Mr. Jones' guilt or innocence.

The judge can dismiss jurors "for cause." Causes might include: illness, family responsibilities, or a perceived inability to comprehend the anticipated evidence. Lawyers on both side have been given a prescribed number of peremptory challenges, which permit them to reject jurors for no particular reason other than "a gut feeling."

At the Northrup jury selection, a prospective juror read his bible throughout the many hours of voir dire. When his number was called and he took his seat in the jury box to be questioned, he was attentive, but determined. He told the judge that only God can judge a person's guilt or innocence. He said he would not be able to follow the judge's instructions on the applicable law in the case -- unless the judge's instructions matched his religious beliefs.

The prospective juror was excused "for cause." The cause in this case was a refusal to follow the judge's instructions.

While the number and scope of excuses may be fairly generous in a murder trial -- the seriousness of the charges dictates the need to be careful -- there are some "excuses" that cannot be exercised. This is a complex issue, because each side desires certain kinds of jurors and wants to avoid others. In the Northrup trial, DNA evidence was anticipated. The prosecution might want jurors with college educations, who could understand the science of DNA evidence. The defense might want jurors who would be unlikely either to understand or to accept the reliability claims for DNA evidence.

But, racial considerations are not supposed to influence jury selection.

"The race card" can be played in either direction, of course. The usual assumption is that people of color are excluded from the jury because of racial bias. But, it can also go the other way. If the defense attorney assumes that Black people will have had negative experiences with the police and consequently will be more likely to doubt police witnesses, then the race card can be played in an effort to place a disproportionate number of Blacks on a jury.

Or, the race card can be played to gain the upper hand by discomfiting the prosecution and the judge.