Category Archives: Voir Dire

Holmes (Aurora Theater Shooting) Jury Selection Q&A

With the Holmes jury selection underway and the whole world watching, I thought it relevant to tap into some of the issues that are likely to be raised by the media and inquiring minds. One of the largest nets has been cast over Arapahoe County, Colorado, to find an “unbiased” group of jurors for the infamous trial. Holmes is facing murder charges and, should a jury disregard his insanity defense, a death penalty. This makes for an interesting jury selection due to the notoriety of the case as well as the issues of insanity, death qualification, and Colorado’s unusual law requiring the Prosecution to prove sanity. Let me address some general questions that will arise as the jury selection moves forward:

1. What happens to jurors who are potential jurors but who have not yet been selected?  Jury selection in this case is scheduled to take a couple months. This raises some interesting questions such as “What happens when a juror is questioned and then released back into their normal life for a couple months before trial starts?” It will potentially help some jurors get their lives in order for the impending long trial, but it also gives them time to potentially be bombarded with media information about the case. Although jurors are instructed not to look up anything about the case or read about it, it will be hard to avoid all day around work colleagues and friends especially when the potential juror doesn’t even know if they are yet on the jury.

2. For large cases like this, how do attorneys know what types of jurors they are looking for? Attorneys have likely run a series of focus groups to aid with jury selection and case strategy. Often jurors in focus groups reveal pivotal issues that the attorneys would never have considered. Those issues then need to be crafted into voir dire questions that can elicit honest discussion about juror viewpoints. In addition, attorneys may do some mock jury selection with focus group participants to practice honing in on question format as well as making sure to connect with the jury, get truthful answers (which is an art in itself), and keep up with any time limitations set by the court. Attorneys will be delving deep with jurors to find out their biases and beliefs. In a case such as this, the Defense will be looking for people who believe that mental illness can have a real effect and who are willing to follow the law regarding insanity. The Prosecution will likely be looking for jurors who are more emotional about the case and who are more apt to believe that a killing whether done in a moment of insanity or not, is a killing worthy of 1st degree murder and the death penalty.

3. What types of questions can attorneys ask to reveal hidden bias? Attorneys often need to focus on lowering the barriers to “bad answers.” What you want to hear from jurors are their honest viewpoints and often those viewpoints or biases are hard to hear when you are advocating for one side or the other. An example of a bias would be a reporter who is asked to sit as a juror on a First Amendment rights case where the reporter would obviously have a personal opinion on First Amendment rights of the press. Another example would be a doctor or nurse as a potential juror on a medical malpractice case. There is often a concern that the biases could “contaminate” the rest of the jury pool. In my opinion, this is not a valid concern. The chances of someone changing their deeply held views simply because a stranger sitting next to them voiced a conflicting viewpoint are slim to none. Therefore, attorneys need to focus on bringing forth those biases, embracing them, thanking jurors for their honesty, and using the voiced biases to generate more honest discussion.

4. What about Stealth Jurors or jurors who want a book deal out of this? The concern is less about jurors wanting a book deal per se as that is not very common, but more about jurors who may want some sort of media recognition or power. Attorneys will need to look for people who seem to want their 15 minutes of fame or who are excited about serving in this case. Those would be red flags. As for stealth jurors (or jurors who have an agenda), it is a real concern without a good solution. Stealth jurors do exist and jurors do sometimes lie to try to get on a jury. In this case, jurors could have very strong feelings about the death penalty or this defendant in particular and want to get on the jury to make a statement. The only way to find a stealth juror is through comprehensive questioning and coming at them at every angle. Attorneys should also be looking for changes in body language or tone of voice when a juror answers mundane questions as compared to when they answer more case-specific questions. Changes in nonverbal communication CAN be ONE indication of deception.

5. In a case like this, how can stress impact jurors and their decision making? How can attorneys screen for jurors who will hold up best under the stress to decide a verdict based on the evidence and not emotion? Stress can become an issue even in less high profile cases. I’ve interviewed many jurors post-verdict and if the evidence is personal to them in any way or they feel a connection to a party or witness, the trial can be emotionally taxing for them. Those same jurors, however, express a sense of civic duty to pay close attention and to listen to even the most horrific testimony. Attorneys need to be sensitive to the nature of the case and discuss the difficulty in seeing unsettling images or hearing heart wrenching testimony. Some people are better equipped to deal with such evidence than others. As for deciding a verdict based on the evidence and not emotion, this is a problem in every case, including civil cases where jurors could feel sympathetic to an injured party or to the person being sued. The law is that sympathy can be felt but cannot be a part of the verdict. The task for the defense in this case is to emphasize to jurors that emotion is human and feeling it is allowed but deciding a verdict on it is not. The defense attorneys will be looking for jurors who are able to follow the law regardless of their emotions. The prosecution, on the other hand, will benefit from jurors who have a hard time setting their emotion aside.

6. Do attorneys choose based on demographics or are they more concerned with questioning the individual? Attorneys may ask some of those questions and it can provide SOME information on jurors but what matters most is the individual. Jury selection based on demographics simply does not work in the vast majority of cases. It could be that certain groups of people will have had similar experiences in life and therefore are more likely to think a certain way but attorneys would want to confirm that with multiple focus groups and even when there may be a correlation, people are individuals and it could be a costly mistake to assume a juror will harbor one bias or viewpoint based on demographics alone.

As the trial progresses, it will be interesting to see who the jurors are and how they handle the evidence.

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Do You Really Win or Lose Your Case In Jury Selection?

It’s been said many times that you win or lose your case in jury selection. But is this really true? Is jury selection so critically important that it will make or break the verdict? Yes and no.

Jury selection is critically important. No doubt about it. However, I do not believe that the jury you have seals the fate of your case. Of course evidence matters, but that’s not even what I’m referring to. Jury selection is a misnomer. We all know it’s really about de-selection. And that implies something – it implies that you’re not choosing the jury that’s best for you, you are eliminating the worst on the panel. That’s all jury selection can do – give you a better chance at a good verdict than you had before you started eliminating people.

In most jury selections I take part in, there are more “bad” jurors for our side than good. While cause challenges certainly help, judges are often hesitant to grant them even when a juror outwardly states that they cannot be fair and impartial. This often leaves you with 4 strikes but 7-8 bad jurors. And those are just the bad jurors that you know of. How much do you really know about the person when your voir dire is limited to 20 minutes? Sure, sometimes your opponent may strike a bad juror or two for you if they also believe they are harmful to their case, but more times than not, you will have more jurors to strike than you have strikes and you will likely be left with one or two jurors that were more quiet whom you know little about.

This brings me back to my original point. A great majority of the time (maybe even all of the time – but I hate absolutes, so we’ll say over 95% of the time), you don’t win or lose your case in jury selection. Even if you think you have a good jury, you never know what answers you would have gotten if you’d had more time to talk to the jurors during voir dire. During jury selection, you can only improve your chances of a good verdict but always go into trial assuming that you will have a few bad jurors left on your panel.

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Jurors United? Something to Consider During Jury Selection

The jurors in the Drew Peterson case are drawing some media attention. While it seems to be out of a movie (Runaway Jury, in fact), the jurors coordinated clothing for a month during the trial. One day it was yellow, another day blue, another day green. Some days it was business suits and other days sports teams jerseys. They have also alternated red, white, and blue, in what may or may not be a sign of patriotism. Without talking to the jurors, no one really knows what this all means. Some say it means the jurors are not taking their jobs seriously. I would doubt that from my multitudes of interviews with jurors, a great majority of whom took their jobs very seriously. What it does show, regardless of the message, is that the jurors are united and getting along.

Does that mean there will be a verdict? Possibly. The odds are higher that there will be a verdict when jurors unite than when there is dissent amongst them. But it is possible that they all get along wonderfully yet disagree on some parts of the evidence or the law.

There is one lesson to point out in this. When you pick a jury, be conscious of the dynamics of the group rather than only focusing on individual jurors. If you want a hung jury, try to put clashing personalities on the jury together. If you want a cohesive group who is more likely to reach a verdict, try to get jurors whose personalities and backgrounds mesh well. Jurors form relationships over the period of a trial and just like any relationship in life, it can be harmonious or tumultuous. Spouses that fight all the time rarely make any decisions together. The same goes for jurors.

What will the verdict be in the Peterson trial? Only time will tell. But I would place money on the fact that if there are disagreements in that jury room, they are being worked out in a civilized fashion with respect for the system and each other.

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What To Do (And Not Do) With Short Voir Dire Time

Voir dire time in many places is now limited to 15-30 minutes (if you get attorney-conducted voir dire at all!). Aside from filing motions for extended voir dire, arguing with the judge, asking for more time when your time is about to be up, and many other suggestions for getting more voir dire time, I want to address some ideas of what to do when you are stuck with such a small amount of time.

There are some very good attorneys and consultants who will suggest using scaled questions (those are questions where you have people give answers on a scale of 1-5 or 1-10, etc.) in such situations. They suggest coming up with some questions about tort reform or specifics about your case and go down the line of jurors asking where they fall on the scale.

I would suggest something different, however. I understand the need to get as much information from jurors in such a short amount of time but my fears in using the scaled method are:

  1. Unless you have really tested the questions and reliability of the scales, you may learn absolutely nothing. I often use scaled questions on my intake forms for focus groups and most of the questions asked have no correlation to the juror’s ultimate opinion. Many jurors who say they are in favor of caps, for example, will go way beyond their maximum dollar amount when they hear the facts of the case. Further, you don’t know why the jurors hold such beliefs or how ingrained the beliefs are unless you talk to them.
  2. You give up any chance you have to become likeable and create rapport with the jury. If all you do is go down the line and have jurors shout out numbers at you, the jurors learn nothing about you and you learn very little if anything about them. Jury selection is a time for you to create a bond with the jurors. Jurors are already degraded by being given a number instead of a name, herded like cattle, and told where to sit. You only add to their degredation by having them give numbers instead of answers.

My suggestion is to use whatever little time you have getting jurors talking. If you’re a plaintiff’s attorney, you probably want to focus on tort reform and just get them spouting off about frivolous lawsuits and greedy attorneys. Let them see you listening and thanking them for their answers. They will feel a whole lot better about you if you spend your 15 minutes with them asking questions and facilitating a dialogue than giving scaled answers. That’s not to say that you can’t use one or two scaled questions within the discussion or ask a couple of hand raising questions to find out which jurors to start the conversation with, but the main focus should be on getting to know the jurors as people and them seeing that you have an interest in them.

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Where You Are Losing Leverage With Preponderance

Preponderance is one major foundation of all civil lawsuits. If jurors truly made their decisions on the basis of more likely right than wrong for liability AND damages, there would be many more plaintiffs verdicts.  David Ball has done wonderful work in his Damages books teaching attorneys how to weave preponderance into a case from voir dire through closing but there may be one major area where you’re missing the leverage preponderance gives you.

My father is a neuropsychiatrist.  He has been deposed before and testified at trial.  Recently he was deposed about a prior patient of his. Afterward, we had a discussion about preponderance.  He told me that the attorney asked if various things were more likely true than not, a phrase he has become very familiar with after listening to me talk, but that the meaning of the phrase never really sunk in.  When he was hesitating on a question, the attorney asked if it was just 50.001% true and it clicked – more likely than not means only 50.001% – and he quickly answered the question that of course it was at least that probable!  When I asked what he thought “more likely than not” meant, he said it obviously did mean 50.001% but that without the percentage being directly pointed out to him and without time to really sit and think about the meaning of the phrase, it just meant a lower standard than “beyond a reasonable doubt.”  In asking a few other doctors about their perceptions, I got the same answers.

You may be losing ground with your own experts as well as cross-exam of the defense experts if you are not clearly pointing out that “more likely than not” means 50.0001%.  While it’s obvious that the phrase can mean nothing more than that, I’m finding that many people do not think hard enough to put it in those terms. Make sure to explain what it means in percentage terms and if a witness is waivering, remind them that it only means 50.001%.

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Maximizing your Budget for Voir Dire

The more I am called in to help attorneys with jury selection, the more I realize their money may have been spent better elsewhere. Am I advocating that having a consultant attend voir dire is a waste of money? Absolutely not. But unless you are skilled enough at conducting voir dire, you may not be able to elicit the attitudes from jurors that your consultant needs in order to guide you as to which jurors are good or bad for your case. I have attended one too many voir dires where the attorney was confusing, wasting much of their limited voir dire time trying to re-explain themselves to the jurors who sat with furrowed brows or failed to nail down cause challenges thereby losing multiple opportunities to make their peremptories go further or asking questions in a format that elicits only the politically correct answers.

Here is my suggestion. Gather 12 people and bring them into your office. They don’t need to match your venue’s demographics because you don’t care what they say, you only care that you have bodies to practice on. Pay them in pizza. Have another attorney play judge and try to rehabilitate your jurors after you set the grounds for cause challenges. And finally, have your consultant there to critique you during the process. Practice staying on schedule, getting jurors to talk to one another, getting jurors to give you “bad” answers, and getting jurors to strongly commit to cause-challenge answers. Don Keenan and others have been suggesting this, but I know not nearly enough attorneys are doing it because I am at all of your voir dires!

I would much rather send an attorney into voir dire prepared and without me than to be unprepared and have me there but not elicit information I need to be helpful. If you have the budget to do a voir dire focus group and have a consultant at voir dire, by all means, do both. After all, the focus group should only take a few hours. But if it’s one or the other, I would STRONGLY suggest using your consulting budget on voir dire practice. Besides, it will pay off not only for that case, but for any future case. That is money well spent!

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How to Use “Herd Mentality” to Your Advantage

As advanced as humans are, we are still primitively just mammals belonging to a herd.  Animals and people stay in herds because it provides safety.  If one member finds danger, the rest of the herd is alerted.  Think about being out in the African desert completely alone.  Now picture having a group of people there with you.  I would suspect your stomach felt very different imaging the two scenarios. 

Jurors are no different.  In mock trials and focus groups, I ask jurors what other information they think would be helpful.  There is often one juror who wants to know what other jurors in similar cases decided – how much money did they give?  The want to know the precedent.  Why?  Because they want to follow the herd. 

You can use this mentality to your advantage in several ways.  Some of those methods are taught in “Reptile” seminars with David Ball and Don Keenan and I would suggest attending to get more plaintiff-specific methods.  Here, I want to mention some basics. 

1. When talking to experts or witnesses, use the word “us” instead of “the jury.”  For example, “Dr. X, can you explain to US how the blood vessels became clotted?”  This puts you in the same boat as the jury and unifies the jury as one group.

2. Get jurors to see their own commonalities.  You can start to unify jurors as a group early on in voir dire.  Explain how most people who get jury summons don’t want to come but they all have something in common – they all showed up.

3.  Frame questions for your experts in a manner that hints at what others may think.  For example, ask experts, “so, most agree…?”  This hints to jurors that others think one way and to be part of the herd, they better follow.

4. In closing, tell jurors “I wish I could tell you what other jurors in cases like this do, but I’m not allowed to.”  This insinuates that what you say is in line with what other juries say or do.  Greg Cusimano is very good at this method so I suggest reading up on his works as well.

To finish it off, I’m posting  a video purely for entertainment purposes but it certainly demonstrates herd mentality:

http://www.youtube.com/watch?v=lYTBOhicf4g&feature=player_embedded

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Filed under Focus Groups, Jury Research, Misc, Uncategorized, Voir Dire