By Dr. Ken Broda-Bahm:
In my work, I get to watch many attorneys go through the practical rituals of jury selection. A big part of the job is looking for, setting up, and executing challenges for cause when there are reasons to doubt potential jurors’ ability to be fair in following the law and the facts. Every trial lawyer has their own style for doing that, and some are better and some are worse. But it is worthwhile to take a hard look at your own approach. When you are more effective at it than your adversary, cause can be a huge factor in shaping the eventual jury in your favor.
One of the mistakes I see most often is a rush to ask the ultimate question in setting the grounds for a cause challenge. Jumping too soon to the criterion question, the “can you be fair?” part, can quickly shut-down what could otherwise have been a productive challenge, requiring you to use a precious strike on a still-concerning potential juror. Asking immediately whether that significant experience or hardened attitude is likely to prevent them from being impartial in this case will, more likely than not, let them off the hook with a quick “No it won’t.” The reason for that, and the reason you cannot necessarily trust that answer, is that the members of the venire are under a lot of pressure — from the situation, from the judge, and even from themselves — to give what they feel is the “right” answer. For jurors looking to get out of serving, a disqualification can come easily, even when the juror’s sincerity is questionable. But for the greater number who are uncertain, or who are even trying to get on the jury, they will lean in the direction of giving the correct and expected answers. Getting past those barriers requires patience and a system. In this post, I will apply a fishing analogy in sharing one good sequence for setting up a cause challenge.
One, Lay Out the Bait
Before getting into any questions about fairness, you will want to create a context to cut against the expectation that jurors are just there to follow the rules. Your judge may have even subtly – or explicitly – encouraged the idea that the panel is expected to say that they can be fair. In response, your own bait should be something to create some “social desirability” in favor of admitting possible partiality. Rather than framing it as “bias” (a bad word to most of us), frame it as anything that might interfere with clean and effective decision-making in this process. Send the message that it is okay, and indeed it is the purpose of this stage of the process, to be honest in sharing these possible threats to fairness.
Two, Get the Nibble
The next step is to tap into a possible area of strong feeling or significant experience. The subject area for these issue-based nibbles will naturally vary across cases, but common topics are views on lawsuits and damages as well as experiences that might be too parallel to either the plaintiff or defendant in the case. Rather than asking a catch-all question on whether “anything” might prevent fairness, it is best to start by asking open-ended questions focusing on whether the potential jurors have the relevant views or experiences. The broader the question, the better. And this is one area where questionnaires can be helpful, because answering in private has been shown to make self-disclosure a little easier.
Three, Set the Hook
When you see a juror with a potentially disqualifying experience or attitude, don’t immediately go to the standard question about fairness. The risk is that you stop the discussion by giving the juror the opportunity to give the expected socially-desirable answer (“Yes, I can be fair”) before they or you have really had a chance to think about the effect that factor might have. Losing a cause challenge because you asked too soon is analogous to a fish slipping off the hook because you reeled it in too aggressively. Instead, you want to ask questions that encourage the panel member to think and talk about the attitude and experience. Again, broad is better: Tell me about that or In what ways do you think that has affected you? The point is to get them talking, because they need a chance to “wear” that attitude a bit before they can meaningfully weigh in on whether it interferes with their fairness.
Four, Reel Them In
Once a potential juror has had non-leading opportunities to move toward revealing an attitude or experience that could be a barrier to fairness, the next phase is to ask a stair-step sequence of questions escalating towards disqualification. Don’t start at the top step of Would that prevent you from being impartial in this case? Instead, ask for some lower commitments first, and build on them:
Do you consider this an important view/experience for you?
Do you think that would be on your mind?
Do you believe that this would make your point of view different from the point of view others would bring to this case?
How difficult would it be to entirely set that aside?
Might that give my side a steeper climb than the other side?
Then, once it is clear that the individual has committed, you can ask the question using the language that the judge is expecting:
Is it safe to say that this would make it difficult for you to be fair in this case?
For many, a final step, perhaps akin to getting that fish off the line and into the cooler, is to guard against further rehabilitation by the judge or by the other side:
Since you’ve given this some thought, can we expect that you’re going to be consistent on that?
It sounds like you’re not going to change your mind on that in the next few minutes, is that right?
An important consideration, is that you should show respect for the jurors’ answers. Those who are most dangerous to you should be carefully eased into the admission. But when potential jurors have been carefully questioned, have thought about it and then still resist the implication of bias, you have no choice but to take them at their word. They may still be a necessary candidate for a peremptory strike (unless you’re in Arizona), but if the cause challenge just isn’t happening, then don’t damage your credibility on a dry fishing hole.
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Other Posts on Cause Challenges:
- (Sometimes) Reinforce a Higher Threshold for Cause Challenges
- Voir Dire: Before You Ask”Can You Be Fair?” Know What You Want the Answer to Be
- False Promises: Answer the Plaintiff’s Damages “Pre-Commitments” in Voir Dire
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Image credit: Shutterstock, used under license