April 7, 2013 · 3:06 pm
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.
January 26, 2012 · 3:19 pm
In light of Ken Broda-Bahm’s newest blog post regarding the proper use of statistics in mock trials (http://www.persuasivelitigator.com/2012/01/dont-be-entranced-by-statistical-claims-from-mock-trial-research.html) as well as a rising need for faster jury selection, I thought I would touch briefly on a related topic of whether to score jurors during voir dire and how that scoring can either hurt or help you.
There are a few models of scoring methods being passed around the community and I often get the question, are they effective? The answer is yes and no. Firstly, let’s talk about what these methods entail. If you are able to get a jury questionnaire, you can score the answers on a scale of, say, 1-5 regarding how positive or negative the statement is for your side. Then add up all the scores and you have an overall score for that juror. This score can be altered if you have enough time to ask the juror additional questions during voir dire. If you are unable to get a jury questionnaire, then you can simply score the juror’s answers on the spot as they speak.
There are many positives to this approach. With such limited voir dire time, it’s almost impossible to do a great job at jury selection. There simply is not enough time to talk to everyone. Scoring gives you a quick overall idea of where the jurors stand and may give you an idea of which jurors are the most likely to be harmful to your case so that you can focus your time in questioning them. Secondly, presenting this method to a judge may, ironically, end up giving you an argument for more voir dire time as well as allowing a jury questionnaire! Stress to the judge that if you are able to get out a jury questionnaire, you can score the answers ahead of time which will allow you to conduct a much more streamlined voir dire process as you can bypass many repetitive questions and get to the jurors you really need to talk to. Once you get to trial and the judge is asking how much time you need for voir dire, ask that he/she allow you to continue as long as you are asking useful questions and not promoting your case but that the moment you slip into advocacy, he/she can cut you off. Only suggest this if you are skilled enough to conduct voir dire solely for the purpose of gathering information. This will allow you to have a jury questionnaire as well as time with the jurors.
My caution with using scoring techniques is that scores do not tell the whole story. A stealth juror may say one thing on paper and be thinking something completely different. You may think you don’t need to question that juror and use your time on other jurors with red flags whereas if you were to take some time to talk to the stealth juror, you may notice differences in his/her body language when asking different questions which would indicate untruthfulness. Further, anything on paper can be taken differently than if you hear a juror’s tone of voice and observe their body language as they say the same statement. So, my overall suggestion is to take everything in stride. Do not use scoring as your main voir dire method. Use it to argue for the use of jury questionnaires and take the scores as one piece of information amongst many which will guide you in the jury selection process.
October 22, 2011 · 4:13 pm
There have been many studies done on lie detection and the results are often disheartening. Most of us, including police officers, fare no better than chance at detecting a liar. When it comes to your voir dire, this can be troublesome. While much of lie detection is a gut reaction (if you haven’t read the book “Blink” yet, I highly suggest it), there are some things that you can look for and some myths you should be educated about.
- Liars Fidget. Yes, maybe…but so do people who are telling the truth. Often, good liars have learned to keep their bodies very still. You could have a truthful juror who is simply nervous and fidgety. Don’t assume a nervous behavior means they are lying.
- Liars Look Away. Again, not necessarily. Some liars will look you straight in the eye. They may even have more direct eye contact than normal.
- Liars Won’t Have Detailed Stories. Not true. The stories are more likely to be overly detailed.
The most important things to look for in detecting lies are inconsistencies. As humans, our bodies betray us – there are little tells that come out even if you don’t mean for them to. Slight smiles when talking about something gruesome and horrifying or nods of the head when talking about something in the negative. Look for these subtle body language cues.
If you ask basic questions first, you can get a baseline reading off the person (such as asking about their family and work life). When you ask more controversial case-specific questions and they react differently, that may be a sign they are lying. If a juror is fidgety when talking about basic questions but then stiffens up when answering more case-specific questions, you need to consider that they are lying on the case-specific questions. Watch for changes in tone of voice, body gestures, crossed arms, whether they look straight at you or not. It is not the gesture in itself that matters – it is the difference from their baseline. Watch for inconsistencies and you will fare much better than sticking to stereotypes of liars.
If you want to know more, look up some work by lie detector Pamela Meyer and I’m sure there are many others.
August 18, 2011 · 7:31 pm
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.
March 6, 2011 · 11:35 pm
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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January 25, 2011 · 11:41 pm
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.
January 23, 2011 · 5:22 pm
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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