By Dr. Ken Broda Bahm:
Here is some practical advice for capital defense jury selection that carries important implications for civil cases as well. It is well established that the process of “death qualifying” a capital jury, by weeding out those have a moral or other objection to the death penalty, ends up biasing the panel in favor of conviction. The response, for a strategic capital defense attorney, is to focus on the opposite end of the scale — “life qualification” — by seeking to identify jurors who would have trouble sentencing a killer to life in prison instead of imposing the death penalty. Those strongly in the “eye for an eye” camp are reluctant to allow any murderer to live out their life in prison, and would have difficulty following the court’s instructions to impose instead a life sentence, for example, if mitigating factors outweigh aggravating factors. By targeting the most highly “pro-death” jurors, the defense attorney can try to balance out the biasing effect of death qualification.
The principle is one that applies to civil cases too: When deselection of an extreme characteristic biases the jury against you, you can balance things out by targeting the opposite extreme. This post will unpack that principle, first as it applies in capital cases (using the example of one question shared with a consultant working in the Casey Anthony case), and second as it applies in civil cases (using a products liability jury selection as an example).
Balancing Your Capital Jury: Life Qualification
From the perspective of the defendant, the death qualification process (outlined here in a judge’s memo) is already stacking the deck against you in the highest stakes game imaginable. Where I’ve assisted the defense in jury selection for a capital case, however, I’ve encouraged a response that brings a little more balance by targeting the other extreme: life qualification.
We know that, even where it isn’t imposed, the existence of the capital option can have a big influence on the ways jurors see the case. In the Casey Anthony trial, for example, the fact that death penalty was on the table may have influenced jurors’ standard of proof, creating an unwillingness to find guilt in the absence of a certain cause of death. Prosecutor Jeff Ashton has recently revealed that he wishes that the death penalty would have been left off the table.
In the Anthony case, death penalty attitudes were obviously an issue during jury selection. At the request of one of the consultants working that defense, I suggested the following “life qualification” question:
If the evidence led you to find a defendant guilty of first degree murder, and further to find that the legal instructions point you toward life in prison rather than the death penalty, would you have difficulty imposing a life sentence rather than the death penalty? In other words, would it be unfair in your view for someone who purposefully killed someone else to receive life instead of death?
This is designed to target the opposite of an anti-capital punishment bias: the jurors who would find it unjust to not impose the death penalty for any intentional killing. By the same reasoning that applies to death-disqualified panelists, those who would have substantial difficulty applying a life sentence should be dismissed for cause, not by peremptory challenge.
Balancing Your Civil Jury: Targeting the Opposite Extreme
The same principle involved in life qualification also applies in civil cases. The same tendency for strategic voir dire by the other party to unfavorably stack your panel exists. In a products liability case, for example, the plaintiff might focus heavily on those who take an extreme view of personal responsibility:
Who believes that when someone uses a product improperly and is injured, they should never be able to sue that company, no matter how foreseeable the improper use or injury may have been to the company?
Used well, a question like that will weed out the most extreme high personal responsibility jurors. From the defense perspective, that creates a corresponding need to focus on those who are extremely low in personal responsibility. Asking a question like this will restore a little bit of balance:
When it comes to expectations for product safety, people differ. Some people believe that a product manufacturer needs to guard against predictable problems. Others believe that the company needs to guard against all conceivable problems? How many of you would be closer to that latter group: If a problem is conceivable, then the company should guard against it?
Ultimately, it is a simple idea, but one that litigators don’t always account for. We think of our own efforts to pare down the panel, but think less about the effect of the other side’s efforts. Death and life qualification provide good examples. If an opposing party’s question is likely to introduce a slant, then your best response is to counter that slant.
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Photo Credit: tyger_lyllie, Flickr Creative Commons