By Dr. Ken Broda-Bahm:
As the historic first (but not last) criminal trial of a former U.S. President was kicking off last week, Mr. Trump commented, “Jury selection is largely luck,” before moving on to his more familiar complaints about the unfairness of the venue, the charges, the judge, and the trial process as a whole. For those who research and work in the area of jury selection, the quip about luck probably yielded a fair amount of head-scratching, especially in light of reports that the Trump team hired jury consultants and researchers from Magna Legal Services to improve their odds. Yes, there is a certain amount of good or bad fortune that can come into play when it comes to the venue, the show for your trial date, and the composition of your ultimate jury. But these elements of chance will generally be dwarfed by factors of preparation, analysis, and experience that come down to skill rather than just dumb luck. In the end, fortune favors the prepared.
The durability of metaphors for jury selection — coin flip, crap shoot, dart board — suggests that Trump was merely giving voice to a popular perception, possibly informed by his experience with many high profile trials over the years. That perception can be propped up by the reality that there are many unknowns and human factors that cannot be fully controlled, making voir dire, as the saying goes, “more art than science.” But within that art, there is a well developed palate of tools. Particularly in high-profile and well-resourced trials, attorneys should be using those tools to the maximum that conditions allow. In this post, I will take a look at several of the elements that should separate your voir dire from a roll of the dice.
What can you do to maximize the preparation and minimize the luck?
1. Use a Questionnaire
The first Trump criminal trial wisely made use of a comprehensive questionnaire, with 42 questions that focused on venire members’ information habits and affiliation with pro- and anti-Trump organizations. They pointedly did not ask about some things — the judge isn’t going to let the parties peek into the voting booth — but they did cover many experiences and attitudes that will matter: “Do you have any feelings or opinions about how Mr. Trump is being treated in this case? (question 32),” for example. In addition to providing a foundation for subsequent inquiry, the questionnaire also provides an opportunity to see how potential jurors respond to some of the same issues being addressed in later verbal questioning. These consistency checks can be an important way to ferret out possible stealth jurors.
2. Do the Public Social Research
This first Trump criminal jury selection might lead to a sharp change in how we see jury selection. For as long as we’ve had social media, lawyers and consultants have been investigating jurors’ public posts. However, most practitioners don’t like to advertise that fact to potential jurors for fear that they will recoil at the idea of being “spied upon” by the parties. Because the information is public, it isn’t really spying, and it is generally allowed. At the same time, we have assumed that a potential juror wouldn’t be comfortable with it. So when we find something relevant, we will typically consider it when making our choices, but without confronting the potential juror. In the Trump case, however, the social searching has been conducted in the open, with some jurors confronted with their “lock him up” posts about the defendant. One silver lining of this case could be an increasingly normalized expectation that both sides will be using the increasingly voluminous internet information at their disposal.
3. Ask Good Questions
When I say “good questions,” I mean questions that are designed to find out what venire members actually think, rather than questions that seek to prime jurors or to get “commitments” on their future behavior. The Trump written questionnaire, in my opinion, does include a number of “promise-to-be-fair” questions that are likely to have little if any reliability. But especially in oral questioning, unless you’re trying to talk a panelist into or out of a cause challenge, don’t lead. What you’re after is this: When a potential juror gets to choose what they’re going to say, what do they say? In that context, a good open-ended question is something like this, “What were your thoughts when you first heard that Mr. Trump was charged with these crimes?”
4. Pay Attention to Everything
Ideally, both sides in this case also had help when it came to selecting the jury. With the examining attorneys focused on asking good questions, others on the team need to be recording all the reactions, verbal and non-verbal. While there is no tool of science or intuition that will translate a glance or a furrowed brow into a definitive message, it does pay to notice who seems uncomfortable, who seems excited, and who seems like they might just be trying to keep their heads down and go unnoticed. There will always be unknowns and risks in this setting, but jury selection is such an information-rich environment that it makes sense to try to capture and use as much of that information as you can.
As Trump’s trial, now seated with twelve jurors and six alternates, heads into testimony, I strongly suspect neither side is really counting on luck. The prosecution likely vetted their jurors for those who could pay attention to evidence and detail, while the defense was probably looking for, if not a scarce sympathy among New Yorkers, at least that one juror willing to throw things into a mistrial. Of course, time will tell. Fortunately, it doesn’t just come down to selection, it comes down to evidence.
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Other Posts on Voir Dire in Trump Trials:
- Improve Voir Dire: A Trump-Jury Example Script
- The Trump Juries: Adapt Your Procedures for Higher Profile Jury Selections
- Know Your Trump Juror
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