By Dr. Ken Broda Bahm:
When Trump associate Roger Stone was sentenced last month for obstruction of Congress and witness tampering, there was some pushback from media, Stone’s legal team, and the President himself targeting the jury’s foreperson, a focus of a recent post in this blog. As part of that pushback, we have seen some claims that she could have been a “stealth juror,” or an individual who purposefully answered questions so as to conceal views or experiences that could have kept her off the jury. Without commenting on the merits of that claim (the questionnaire responses have not been made public), the situation does provide a timely reminder of the importance of considering stealth jurors, particularly in trials that are receiving high-level media attention.
Courts in this situation like to presume that every potential juror is being honest until there is evidence to the contrary, and that is understandable. But in many situations, that makes things pretty easy for the stealth juror: All they need to do is figure out what the “correct answer” is, and give that answer to the court. So what can you do? I have written about stealth juror identification before, and for the trial team, it means not fully trusting the ability to “read” non-verbals, but to focus more on thoroughly searching social media and other sources of public information, asking questions that don’t telegraph a right answer, and looking for patterns or inconsistencies in the responses. In this post, however, I want to consider the question of what the courts should do if anything about the possibility of stealth jurors in high-profile cases. It is a safe bet that someone on Roger Stone’s team thought it was a good idea to ask the court for procedures to account for the possibility of stealth jurors. So, I’d like to take a quick look at what that would mean.
A Fine Line for the Court
There is an understandable limit to how much scrutiny the court wants to impose on members of the venire. After all, they are voluntarily showing up to do their civic duty, they are not on trial. At the same time though, the stakes for those who are on trial are incredibly high. The need to minimize the influence of bias on that jury is both a legal and practical priority. In that context, the court should support a respectful but complete inquiry and should take responsibility for explaining to potential jurors why that inquiry is necessary and proper and why honest answers during that inquiry are important to a fair trial.
While the judge cannot prevent the possibility of a stealth juror getting through, the court can and should consider and allow jury selection procedures that at least make it harder for a motivated individual to slip through.
‘De-Stealthing’ Tools that Courts Should Encourage
I see three main court practices that help to make it harder for stealth jurors and easier for the trial teams trying to identify them.
Clearly Open the Door to Public Information Searches
The judge does not have to explicitly allow social media searches, but in a high profile case, it can help for counsel and the court to have an open understanding that this kind of research is being done. As long as the searches are legal and ethical (i.e., compliant with ABA Formal Opinion 466), the trial teams should be comfortable in knowing that they are not doing anything sneaky and should be open about referring to such information at bench conferences discussing the grounds for a cause challenge. The court can also help by taking actions that make that search more complete and accurate, such as releasing in advance a list with the full name, employer, age, and city of residence for all members of the venire.
Allow a Detailed Questionnaire
Potential jurors can lie on a paper questionnaire as well, of course. But if the questionnaire is specific, and if it is professionally designed to address the key issues in multiple ways, then you can look for consistency across responses. With specific written feedback, it is more likely that you can recognize someone who is trying to tell a story of themselves that differs from the other information you have been able to find out about them.
In addition, the questionnaire should focus on everything that is potentially relevant to bias, and not just on the issues that are the proper focus of the trial. For example, in the trial of Roger Stone, neither side wanted support or opposition to President Trump to be a factor. But that is a reason for a relatively deep dive into political views, not a reason to avoid that focus. You want to use the questionnaire to identify anyone who feels so strongly on the issue that they could not bracket it out in order to focus on the evidence.
Let Attorneys Ask Open-Ended Questions in Voir Dire
As much as it makes for quick and efficient seating of a jury, voir dire should not be a game of “Will you say you’re fair?” These question forms provide a very clear map to the stealth juror, and they will simply say “Yes, I can be fair,” or “No, I won’t let that affect me.” Instead of going for that checklist-style confirmation, it is better to get them talking and check for both sincerity, and especially consistency with other known information about the juror. If anyone presents a picture that differs from what you already know (from either public searches or the questionnaire) then you have to be suspicious that they’re trying too hard to get onto the jury.
We did not really get a chance to hear that from the Roger Stone foreperson, at least not in the public questioning. The defense attorney mentioned her political affiliation and past run for office as a Democrat, then mentioned Roger Stone’s connection to Trump and the Republican party, and then at least tried to ask a good open-ended question: “How do you feel about that?” The judge, however, quickly shot that down and transformed the question into a closed-ended fairness question: “Is there anything about [Stone’s] affiliation with the Trump campaign and the Republican party in general that gives you any reason to pause or hesitate or think that you couldn’t fairly evaluate the evidence against him?” The simple “No” from the prospective juror told the team very little. The question was designed to answer the narrow cause question, not designed to tell the defense team what they would need to know in order to identify a stealth juror.
While we don’t know whether there was or wasn’t anything stealthy in the foreperson’s answers, we do know that in high-profile cases, stealth jurors are a significant risk, and questioning attorneys need to have the means to look for them. Given the high-profile nature of the case, the court should have allowed more inquiry.
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Other Posts on Stealth Jurors:
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