Overwhelmed by the jury selection process? The American Bar Association encourages attorneys to use the expert services of jury consultants due to the subtle nature of determining inherent bias in potential jurors. But it is still the responsibility of the lead trial lawyer to choose and manage the experts, to question the prospective jurors and to make the final decisions about challenges and strikes. So here are a few things to keep in mind.
Voir Dire is an Opportunity to Learn
Many would tell you that jury selection is your first opportunity to begin persuading jurors in the merits of your case. Do not take this advice literally. You will be more persuasive if you do not try to argue your case in voir dire, but instead through your genuine interest and thoughtful questions show the jurors that you respect them and can be a good listener. Formulate your questions to elicit information, to find out things you do not know. If you try to formulate your questions in a way that shows off the strengths of your case, you may get positive responses, but you would waste an irreplaceable opportunity to learn who your jurors are. Moreover, as a prosecutor, you have to be aware that a higher standard applies to you: jurors expect you to be (or at least strive to be) unbiased. So, if your questions appear to be leading and you are not perceived as a good listener, you may hurt your own credibility.
You Do Not Select a Jury, You De-select Individual Jurors
It is more productive and accurate to think of your part of the jury selection process as de-selection because the only thing you get to do is to try to get rid of those jurors who are the least likely to be persuaded by your case. This is a very important part of the strategy: focus on your opposition, not your ideal juror or jury. It means that the bulk of your questions, given a chance, should be addressed to jurors who you hope to challenge for cause or would have to excuse using a peremptory strike.
Understand What Motivates Jurors to Vote for Defense
Well conducted jury selection by prosecution begins with understanding what motivates jurors to support the defense and to be critical of the government’s case. For a trial lawyer it is tempting, but very dangerous to think that the reasoning and common sense are entirely on your side and those who disagree are either hopelessly prejudiced or not smart enough. A much more productive attitude is to look at the defense’s position with respect as it would help you gain a deeper and more nuanced understanding of the kinds of jurors who would be more receptive to the defense position than they would be to the government case. Doing so would help you put together a list of opinions, life experiences and demographic characteristics that are likely to be associated with these pro-defense attitudes. This list would help you make sure that you ask all the important questions.
Opinions, Experiences, Demographics
Research consistently shows that jurors’ demographics can be extremely misleading in predicting juror verdict preferences. By basing your juror profile on demographics, you may not only get in trouble with the judge, but you may also miss what is really important: jurors’ pre-existing opinions. In terms of predictive value, opinions are more predictive than experiences and experiences are more predictive than demographics. So it is not enough to find out what experiences jurors had, but also what they took away from these experiences. If someone had been fired from a job or arrested, it would make a tremendous difference if the juror felt she was treated fairly, if she accepts her own share of the responsibility, or if she feels victimized. If you are looking to refine your juror profile and to deepen your understand of what motivates jurors various options for online focus groups are available to you, including large-scale juror profiling studies and focus groups of mock jurors.
Make Your Jury Selection Questions a Conversation
While a basic questionnaire is the foundation of your interview, you should structure it in the form of a conversation driven by your open-ended questions. If you familiarize yourself ahead of time with the types of background information that you are seeking, you can encourage venire members to talk about themselves in a free-form manner. If they feel that they are in a supportive situation, potential jurors will speak more openly about their experiences, life situations and viewpoints. A good way to start a conversation with a prospective juror is to ask, “Is there any event in your own life that comes to mind when you think about this case?” If potential jurors answer affirmatively, you can invite them to share more.
Ask About Perspective Jurors’ Job History
Many jury selection questionnaires merely ask about current occupation. However, there is much to learn about someone’s job history; a few jury duty selection questions on this topic would be: “Tell me briefly about your job history,” or “Tell me about how and why you left your last three jobs,” “Describe your work day to me.” This line of questioning can provide deeper insight into a potential juror’s viewpoint on the world.
Fear and Trust
Fear of crime and the level of trust toward law enforcement are critical in forming jurors’ attitudes in criminal cases involving violence or activities potentially associated with violence such as drug dealing. Mistrust toward the police would make jurors skeptical of every piece of seemingly solid evidence that you can present. In jury selection, it is not enough to ask about people’s attitudes toward the police in general. Many people who are critical of law enforcement would not feel comfortable speaking up in court. This is the place where conversational style and open-ended questions would be particularly helpful. Ask jurors to tell you about theirs and their family and friends’ encounters with law enforcement and the impressions they took away from these encounters. The last point is more important than the bare facts of the encounter. Ask the juror if she felt that the police were respectful and whether they were honest in its dealings. Absent any encounters, jurors may still have strong anti-police opinions. And remember that all policing is local, so people’s opinions about police in a neighboring city or their former residence might not be the same as their opinions about police in your case and location.
Is There Anything Else We Should Know?
Regardless of the nature of your voir dire, this final question is essential. Not even the most complete interview can anticipate each possible reason that an individual might feel biased in a particular direction. An obscure or personal episode in the past might have some bearing on a person’s attitude, and only he will know about that.