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.