Category Archives: Voir Dire

Do Jurors Get “Poisoned” During Voir Dire?

Attorneys are often worried about asking questions in voir dire that elicit responses that are harmful to your side of the case.  For example, I hear plaintiffs attorneys worry about asking questions regarding tort reform because they are afraid that jurors will start talking about costs of insurance rising and how lawsuits are chasing doctors out of town.  The fear is that these comments will taint the neutral or good jurors.

My suggestion is not to worry about poisoning jurors on the panel.  Your role in voir dire is to elicit information and you certainly want to hear the bad comments so you can dismiss bad jurors.  Jurors who are favorable to you will not change their opinions simply because a stranger sitting next to them spouts off opposing viewpoints.  If a person holds a fairly well ingrained opinion, they have formed that opinion based on their life experiences.  That opinion has already been challenged by media, friends, and family.  An hour-long voir dire (if you’re lucky to even get the much time) will not change their opinions.  If a juror is neutral on a matter or has not formed any deeply rooted opinions on the topic, they may be swayed by what other jurors say but not to the point of danger to you.  Their opinions will not have been ingrained and they can be easily swayed back to your side during trial.

The most important things to remember during voir dire are:

1. You should listen much more than you talk.  This is a time for you to gather information, not feed jurors facts about your case or try to start convincing them.

2. You need to appear as non-lawyerly as possible.  Jurors hate attorneys and this is your first impression.  Do not under any circumstances argue with a juror about their opinion or try to change it.  You will alienate yourself from the rest of the panel, including your good jurors.

3. Bring out those bad facts and get jurors to commit to their opinions solidly if they are bases for cause challenges.  That will give you a much better chance at removing more of the bad jurors and ending up with neutral or favorable jurors who will then appreciate your openness to different attitudes and trust you more as you begin to present your case.

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Filed under Misc, Voir Dire

Group Dynamics & Jury Selection

When you are selection (or de-selecting) jurors, it is easy to focus on individual jurors to the point that you forget about how jurors are going to interact with one another.  Individual characteristics are extremely important, but so are group dynamics.  Consider, for example, the two following scenarios:

  1. You pick a jury of 12 and during deliberations, 11 are in your favor.  Through some discussion and persuasion, that one bad juror finally either gives up and gives in or is persuaded.  You win the case.
  2. You pick a jury of 12 and again, 11 are in your favor.  This time, however, the one holdout juror refuses to engage in discussions with the other 11 jurors.  She refuses to listen, to participate, or to be open-minded.  You just won yourself a hung jury.

Jury group dynamics do matter and there are some things you should watch for.  Observe which jurors are talkative and which ones keep to themselves.  If there is one juror who seems to sit by him/herself and not engage as much as other jurors, that could be your holdout.

There is also some reason to try to get a couple of jurors of the same ethnic or racial background on the jury together.  Research has shown that one person with certain views left to themselves in a group is much less likely to speak their mind than if they have just one other person on their side.  If the case has any racial implications and you want a certain voice to be heard, give them a backup voice.

If you have two strong leaders, consider whether they will be opposing or cohesive.  If you leave any leader on the jury, be sure they are on your side.  It is one thing to risk leaving a follower on the jury who may be against you, but a strong leader can be deadly.

As you question jurors, watch others for head nods and body language that speaks to their own individual agreement or disagreement with that statement, but also for indications of whether that juror is interacting non-verbally with the juror being questioned.  At all times, be aware of the dynamics.  Obviously, you cannot pick your ideal jury so you cannot control all dynamics, but make sure it is on your radar.

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Useless SJQ Proposed in Criminal Trial

It still astounds me how unaware the court system and some attorneys are regarding juror bias and prejudice.  In this article (click for link – http://blogs.wsj.com/law/2011/02/09/prosecutors-juror-questionnaire-unnecessary-in-rajaratnam-case/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Reader ), federal prosecutors argue for two completely useless questions as the entire basis of a supplemental juror questionnaire:

“In their filing, prosecutors suggested the court, if it wants to use a questionnaire, only ask two questions: would serving on the jury impose a hardship and is there any reason the individual couldn’t serve as a “fair and impartial juror.”

Why are these questions useless?  Because they give jurors no permission to answer honestly.  Almost every juror will state a hardship reason (and these days, many are valid).  As for reasons the juror may not be “fair and impartial,” most jurors will say the politically correct answer.  Of course they can be fair and impartial – who wants to think they themselves could not be fair?  No one.  To get any sort of useful and reliable answers, you need to ask questions in a manner that lowers the barriers to “impermissible” answers.  Give jurors some examples of why they might not be able to be fair.  For example:

Some people believe that if the federal government is coming after someone and that person has already been indicted by a grand jury, that they most likely did the crime they are accused of.  Others think that’s not necessarily true.  Which one are you a little bit closer to?

This is not to mention the fact that the questionnaire should have many more questions than the two the prosecutors are requesting, but that’s a topic for another novel.

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Filed under Juror Questionnaires, Voir Dire

Being Transparent During Voir Dire

Attorneys often make the mistake in voir dire of failing to be honest with jurors.  I often see attorneys try to hide bad facts or spend hours figuring out how to refer to the bad facts in a way that makes them seem okay.  By the time the question is posed to the jurors, it is so disorganized with run-on sentences  that jurors don’t even understand the question.  Much stress and confusion could be saved by simply being transparent.  If you are worried about something in your case, tell jurors honestly that you are worried!  They are human – this lowers the barrier between you and them.  Then tell them what you are worried about, why it worries you, and ask them to discuss it with you.  Do NOT ask “having heard that, can you still be fair to my client?”  It is a useless question that will yield no meaningful or honest answers.  Instead, just have a conversation.  Be relaxed, open, and honest.  For example:

  • I need to ask you all a serious question.  There is something that I’m very concerned about in this case.  My client is not the most likeable guy.  He comes off abrasive and defensive.  He is not warm and welcoming.  He may get on the stand and offend some of you.  I’m worried because I don’t want any of you to feel offended, but also because I worry that even if you find that the defendant more likely than not caused my client’s injuries, no one likes helping a person who is abrasive or offensive.  So we need to talk about that.  What kinds of problems will you have in giving my client a verdict for his injuries because of his personality?

Jurors will appreciate the honesty while at the same time, you will get some valuable information from them.

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Dealing with the CSI Effect

You may have heard of the “CSI Effect.”  It is a more recent phenomenon that is so named because it is caused in good part by television shows such as CSI and Law & Order.   Jurors often coming into the courtroom with inaccurate expectations about how trials work, the way cases are presented, and what attorneys are expected to present to prove a case.  These shows depict trial as exciting, succinct, and full of drama.  They also tend to have defining moments whereby all doubt is erased by one central piece of evidence.  As a result, jurors have a tendency to overestimate the availability of technical, scientific evidence and hold it against you if you do not have it.  They have come to expect presentation of DNA evidence, computer records, and other types of exacting and conclusive evidence at trial.  In reality, we all know this kind of technical evidence is rarely available.  When a case is so clear-cut, there is no need for a jury trial. 

This effect has been seen for some time now in criminal cases due to the advent of fingerprint evidence and DNA evidence.  Now, however, the CSI Effect is showing up in civil cases as well where such technical proof is even harder to come by: 

  • For example, in a case concerning violations of an equal pay statute, jurors in a focus group got stuck on why the government doesn’t have copies of who sent what emails to whom and what was said in them.  The jurors assumed that there are always copies somewhere of computer files that can be presented to conclusively tell the true story.  One of the jurors even reasoned that because the FBI can take computer hard drives that have been blown up and reconstruct them to find terrorists, there must be a way they could find email files in this case.  The fact that the evidence wasn’t presented meant to this juror that the government didn’t want the jurors to see it.  This shows the great overestimation of jurors of the availability of such hard evidence. 

There are ways to deal with the CSI Effect in trial.

It is worthwhile to address jurors’ expectations about proof in the case at the outset either in jury selection or in opening statements (or both).  Since jurors expect some kind of conclusive or technical evidence in even the least technical cases, do not pass up the opportunity to speak with jurors about their expectations in any case, regardless of how much science is involved.   Jurors’ grandiose ideas about proof in a case can be tackled head on by telling jurors that television shows often depict trials in a certain way and that they should know what to expect in a real trial.  It can be explained that an absence of proof does not mean that the evidence does not exist and that jurors should not be waiting for that one piece of conclusive information that will make the case clear; if the case were that clear, it would have been settled outside the courtroom.  The jurors are there because there are conflicting stories and conflicting evidence and it’s their job to sort through the confusion and ambiguity.   By telling jurors that they won’t be hearing the type of evidence that television shows such as CSI would lead them to expect, some of those expectations can be dispelled and they will not wait around for the exciting “aha” moment.

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Filed under Misc, Opening Statement, Voir Dire

Dealing with Juror Misconceptions

The law is daunting.  Half the time, attorneys don’t even understand what legal writings mean and yet every day, we ask lay persons to decipher legalese.  The verdict on a case can greatly depend on jurors’ comprehension (or lack thereof) of the law as well as their preconceived notions regarding what the law is. 

Studies Show Judge’s Instructions Do Not Override Juror Preconceptions

There have been studies done on the effect of crime categories on the verdict.  If the legal (crime) category at issue is one for which the juror has no prior knowledge or experience, then they are faced with the daunting task of learning this abstract information.  Where jurors do have prior knowledge, as is often the case with legal categories such as kidnapping, murder, negligence, etc., such prior knowledge is likely to interfere with legally accurate decision-making. (Pennington & Hastie, 1991)  When mock jurors were asked to list features of various crimes, the features they listed were often incorrect, incomplete, or irrelevant under the law. (Pennington & Hastie, 1992)  This is understandable as many legal definitions of crimes are contrary to common sense.  For example, most people assume that kidnapping includes some sort of violence or prolonged capture while the legal definition requires neither.  Studies show the influence of these types of prior knowledge persists despite hearing judge’s instructions on the law.  The studies showed a tendency for mock juries to vote guilty more often for crimes that followed their preconceived notions of the crime definition than for crimes which legally met the definition of the crime but were atypical of common sense ideas of the crime definition.  Further, in evaluating evidence, mock jurors were more willing to accept evidence that was consistent with their knowledge of the crime category than they were to accept knowledge that was inconsistent.  Thus, expectations about what is typical of a type of crime influences the inferences jurors make to fill gaps in the evidence. (Smith & Studebaker, 1996)

What Can You Do About It?

What, as practitioners, can we do to combat this phenomenon?  The studies say that judge’s instructions did not alter the results.  But instructions from the judge are often as confusing as the original jury instruction.  During closing, you need to explain the pertinent portions of the laws relevant to your case in plain English.  For burden of proof, for example, show jurors the instruction and explain that all it means is “more likely than not.” 

This does not address the issue, however, of jurors evaluating evidence throughout trial based upon their preconceived notions about the law.  You do not want jurors seeing the case through a lens that is harmful to your position.  By the time you get to closing, it is too late; jurors cannot re-process all the case information to evaluate it under the correct lens.  Instead, start asking jurors about the laws in voir dire.  For example, tell them that in cases like these, they will be asked to decide on a verdict based on a standard of “more likely than not”, which is very different from “beyond a reasonable doubt.”  Ask what problems they will have with that.  This not only gives you valuable information regarding which jurors to strike, but also alerts jurors to the law of preponderance.

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The Art of Voir Dire

Some cases end after jury selection – you’ve either set yourself up to win or lose the trial.  But the result normally does not revolve around how well you were able to sneak in your agenda.  Jurors learned long ago to be wary of attorneys using voir dire to tell jurors about their case.  Instead, voir dire is an opportunity for you to build rapport with the jurors so that when you do get to the evidence, jurors trust you and your story.  Trust is not easily built if you hide behind a podium staring at your notes instead of engaging with the jurors.  Part of the art of voir dire is the same thing as the art of conversation.  Pay attention and show a genuine interest.  Let a paralegal, secretary, or consultant take notes.

The process of de-selecting jurors is complicated by the fact that jurors often give answers that are inaccurate either because (1) they are trying to be politically correct, (2) they haven’t thought long enough about the question to give an honest answer, or (3) they are stealth jurors who lie to get onto a jury.  To deal with issues 1 and 2, you need to know how to ask questions in a manner that give jurors permission to answer truthfully.  To do this, you need to lower the barriers to a “bad” answer.  For example, give jurors a choice of two viewpoints and ask which one they are a little bit closer to:

  • Some folks, like my grandmother, for example, feel that money should not be included in a verdict for pain and suffering because money cannot make the pain go away.  Others think it’s okay.  Which are you a little closer to?

This allows jurors to feel comfortable opening up and giving an answer that they otherwise may feel you do not want to hear.  Another similar line of questioning is to ask what problems jurors would have with something:

  • Mr. X, assuming we prove our case to you to a degree of more likely right than wrong, what problems, even little ones, would you have in including money for pain and suffering in your verdict?

The next artful skill is in following up.  This conversation skill is simple, but not easy.  Allow jurors to expand on their answers by asking them, “tell me more about that” 2-3 times per question.  Often jurors do not know their true answers until they are asked to really think about it.  You should get your true response by the second or third follow up.  The reason this is hard is because it is very tempting to ask leading follow ups, such as “how did that make you feel?” or “why?”  These may seem like open questions, but they still lead a juror down a certain path.  Had you simply asked for them to tell you more, they may have chosen to go off on a different tangent which was important to them.

This leaves the third category of jurors, the stealth jurors who answer in a way so as to get themselves on the jury.  Explaining in full how to detect these jurors will be the subject of another post, but in simplistic terms, look for inconsistencies in answers, tone of voice, and body language as they answer your questions and as they listen to other jurors answer questions.

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