By Dr. Ken Broda Bahm:
Q: What is a jury?
A: A group of citizens who aren’t smart enough to get out of jury duty and aren’t interesting enough to attract the attention of either side.
Okay, so that is an unfair joke, but it hints at a reality of the jury selection process: The jury that you end up with is composed of what is left over at the end of the process. According to a recent piece in The George Mason Law Review (Stevenson, 2012), our system’s voir dire and strike methods, as well as the role of jury consultants, have the effect of targeting and removing the most known and most predictable panelists, producing a jury composed of the least known and least predictable members, which increases the uncertainty and unpredictability of the trial process. The article, written by South Texas College of Law Professor Dru Stevenson, is an interesting read, calling into question some of our most cherished assumptions about the jury system, but the author makes some assumptions of his own on the way voir dire is conducted as well as the role of consultants in that process.
Of course, the empaneled jury must literally be made up of those left over after strikes are exercised and cause challenges are made. But that shouldn’t make the actual jurors into the “mystery meat” of the venire. Placing our focus on striking panelists shouldn’t mean that those who serve are unknown or an afterthought who are seated once all our attention has been expended on those we strike. This post takes a look at some of the conclusions of Professor Stevenson’s article, and adds some recommendations for making sure that you know your ultimate jury as well as you know your strikes.
Uncertainty and the Voir Dire Process
The article is entitled “The Function of Uncertainty Within Jury Systems,” and it is a wide-ranging analysis of the function and effect of selection procedures. Professor Stevenson argues that peremptory challenges, and the ways they are used, serve to maximize the unpredictability of the seated jury. This serves as a disincentive to settlement following jury selection, essentially encouraging both sides to roll the dice with what they have. “Each strike cancels out the other [side’s] first-order preferences,” he writes, “and drives the panel toward maximum uncertainty for both sides, which makes settling the case unlikely” (p. 530).
The uncertainty, to Stevenson, stems from the relative lack of information possessed on the remaining jurors once those with the most clear and obvious biases have been removed. “The actual panel,” he writes, “has mostly jurors whose preexisting biases eluded the litigators during voir dire” (p. 530). Calling this condition a “symmetry of ignorance,” he concludes that the net effect of voir dire is to drain predictability from the trial process. That isn’t necessarily a bad thing to the author, though he argues that it does deter cases from settling once a jury has been picked.
There are many other points made in the article and it is worth a careful read. In making the argument that jury selection inevitably increases uncertainty, however, the article errs in treating voir dire as simply a predictive exercise. If voir dire simply focused on those most likely to favor your case in a decision occurring immediately after voir dire concludes, then trimming those with the more predictable views would increase unpredictability. But if instead, the process is about deciding who will hear the evidence in a case, then the goal of limiting bias increases the chance of yielding a decision based on the evidence and not based on the predilections of those who are selected.
A point worth taking to heart, however, is the conclusion that jury selection doesn’t live up to the goals of the process when it is just aimed at removing those with the most easily identified opinions instead of being aimed at learning the opinions of the entire panel.
Know Your Jury and Not Just Your Strikes
Naturally in voir dire you need to focus your strategy on cause challenges and strikes, and it is literally true that you are unpicking, not picking — unstacking, not stacking. But you also have to live with the selected panel.
1. Press for Thorough Voir Dire. The less thorough the voir dire, the more true Stevenson’s thesis is. If you are only learning a little from your panel, for example via judge-conducted voir dire, then you have no choice but to focus on those who simply choose to share more. If you are learning more from your panel, for example through good attorney-conducted voir dire or a questionnaire, you can make a more nuanced choice. The more you hear, the more reasons you’ll have to strike, and hence the more necessity to prioritize and to weigh what you’ve learned.
2. Avoid the “Who Wants to Talk?” Approach to Voir Dire. Sometimes, with the best of intentions, attorneys reason that, “it is the jurors’ time to talk, not mine,” and simply open up the forum. They’ll ask an open-ended question and rely on volunteers from the panel to answer it. Invariably you’ll hear from a minority on the panel — those who are more confident — and those jurors will generally be struck. In Stevenson’s words, “the questions merely serve to eliminate those who can articulate their settled positions” (540), and those who sat quietly and gave up little to nothing during voir dire become your jury. That, however, is a drawback to a particular questioning style and not a drawback to voir dire itself. If you avoid framing questions in ways that depend on a confident or articulate respondent, for example by asking for a show of hands in response to some structured options (see this post for an example), then you are learning something from everyone. That is better than relying on the voluntary sharing of those who are most likely to be removed by one side or the other. Voir dire should indeed be a time for potential jurors to talk and for attorneys to listen, but to gain information from the full panel, the lawyer needs to stay in control.
3. Use Questionnaires to Even Out the Information. The best way to ensure that you are getting equivalent and comparable information from the full panel is to use a questionnaire focusing on the attitudes and experiences that will matter most in your particular case. Having the questionnaire data will allow you to streamline your cause challenges and to make your oral voir dire more specific and more targeted. But it also ensures that every member of your panel will have submitted responses to the same set of questions. Jurors who are quiet or reluctant to speak out freely in the formal atmosphere of the courtroom may still have strong and intractable bias that is related to your case, and research shows that allowing responses in a questionnaire setting leads to more honest and more complete responses.
Once the jury is seated, the role of analysis isn’t over. As a final step once voir dire is done, it is worthwhile to step back and consider who you have seated, what strengths and challenges they’ll pose to your case, and how they are likely to function as a group. As far as your trial goes, that seated jury is your main course, not the leftovers.
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Other Posts on Jury Selection:
- In Jury Selection, Pay All Kinds of Attention to the Man Behind the Curtain
- Voir Dire at the Intersection of Your Case and Their Life: For Energy Litigation, that Means Gas Prices
- Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)
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Dru Stevenson (2012). The Function of Uncertainty Within Jury Systems George Mason Law Review, 19 (2), 513-548
Photo Credit: Bierdoctor, Flickr Creative