By Dr. Ken Broda Bahm:
What do your potential jurors think about the necessity to follow the law at all times? While it won’t apply in all cases, it will apply to many. Recent protests against police brutality across the country have led to scores of non-violent protestors being arrested for crimes such as “failure to disperse,” “failure to obey a lawful order,” or the catch-all “disorderly conduct.” Add these new protests to the continuing backdrop of protests against pipelines, climate change, and many other issues, and there is some regularity to the law enforcement response. While most of these cases will be pled out or dropped, not all will be. For those that make it to a jury, there is the question of whether the potential finders of fact believe there can ever be validity, justification, or honor in violating the law in order to make a statement against an unjust social situation.
Many will support civil disobedience, at least historically or in theory. But they will often think that what was good for Martin Luther King, is not necessarily good for those protesting in their city. And those with a high law-and-order authoritarian mindset will be motivated to punish not only the law-breaking, but the challenge to existing institutions as well. As much as this frame of reference will matter to jurors, it can be tricky to evaluate in voir dire. If you ask about their thinking on civil disobedience, the judge or opposing counsel is likely to jump to the conclusion that you are coaching jury nullification. They will say that, “To be qualified, jurors just need to understand the law, not support it.” But attitudes toward civil disobedience will matter, not just on the question of criminal or civil liability, but also on the question of how punitive a potential juror might be. The filter of attitudes toward following the law certainly rises to the level of being a potential bias that attorneys ought to be able to legitimately ask about. In this post, I’ll suggest a three-step approach.
First, Win the Right to Question
The initial step is to not take it for granted that you can simply ask jurors what they think about following or violating the law. When you first broach that topic, the judge’s attitude is likely to be: “The jurors are here to find the facts. I will apply the law.” Judges also tend to trust, at least until there is evidence to the contrary, that jurors will understand and follow the instructions from the bench. For that reason, it is best to make your case in a pretrial hearing:
Your honor, my goal is to ask about attitudes toward civil disobedience because a bias for or against it will influence how they interpret the facts in this case. I know they will be instructed on the laws that they will follow in the courtroom, and like you, I trust them to follow those instructions once they hear them from you. But at the voir dire stage, it is proper and necessary for me to ask about anything that could determine their ability to be fair, and that includes their attitudes toward following the law.
As an additional clarification, you can offer to include a written disclaimer on the questionnaire and a verbal disclaimer before oral voir dire:
If selected for this jury, the judge will instruct you on your role and the nature of the decisions you will be making in this case. The purpose of these questions is only to ask about your attitudes prior to hearing those instructions.
Second, Question in a Supplemental Juror Questionnaire
Any cause that motivates civil disobedience is probably a pretty loaded cause. That makes the goal of tapping into those views both essential and difficult. Essential because strong views will exert a strong pull on your jury’s interpretation of facts, but also difficult because people tend to moderate their views in formal settings, and in a courtroom they can be prone to the “social desirability bias” of giving expected rather than accurate answers in oral voir dire.
For that reason, there is an advantage in asking jurors about those strong views in a written or online questionnaire that they fill out at home. There is research showing that respondents are likely to show greater candor in self-administered questionnaires than in interviews. So, if you can, start the process with a written supplemental juror questionnaire including questions like the following:
What is your opinion of the amount of protest in the United States today? [Too much, Just right, Not enough]
To what extent is it justified for an individual to choose to violate a law in order to send a social message? [Never, Rarely, Sometimes, Often, Always]
Third, Question in Court
Even with the honesty advantage of a written questionnaire, there is still a role for live questioning in court. Where it is available, attorney-conducted voir dire remains important not only to capture the unique advantages of group questioning, but also because the comprehensive written questionnaire is often not available. When the questioning attorney is able to create an environment where potential jurors feel comfortable discussing their views, then group questioning can be a very effective method of finding the extremes of bias against you and subtly introducing themes that will be developed throughout trial.
Attorney-conducted oral voir dire should promote that discussion using a process like the following:
Ask an open-ended question:
Mr. A, what do you think about the fact that sometimes non-violent protestors will choose to violate the law?
Pivot off of that answer to get responses from the larger group:
How many of you agree with Mr. A, that protestors should state their views but never violate the law? And how many disagree with Mr. A?
Finally, invite comments from the group that are likely to be more favorable:
For those of you who disagree with Mr. A and believe that violating a law can sometimes be a legitimate choice, why do you feel that way? Do you have any examples in mind of situations where that would be understandable?
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Other Posts on Voir Dire:
- Voir Dire on Admitted Liability
- In Voir Dire, Create a Context for Candor
- Think Carefully About Disparate Impact in Voir Dire
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