By Dr. Ken Broda-Bahm:
Yesterday, I spent the full day as a prospective juror at the Lindsey-Flanigan Courthouse in Denver. As you can tell from the fact that I’m writing about it, I did not get selected for the jury. Alas, I was just one of the many “gallery ghosts” watching as others were questioned, excused, or seated. All wasn’t lost, however, as it did give me a chance to observe. One pet peeve that I’ll call out for the judge, the prosecution, and the defense: Stop telling us that we don’t want to be there. After about the fifth time one of them said, “I get it… this is the last place you want to be today,” I wanted to stand up and shout, “Wrong! I want to be here. I’ve seen jury selection from the other side more than a hundred times, but I’ve never made it to being questioned, much less seated, as a juror.” Of course, I did not stand up and shout that. But it wasn’t just me: For every person desperate to get out of serving there are probably ten who are intrigued and looking forward to it. The idea that jurors serve an important social role isn’t just something the judge says when welcoming or dismissing the venire — most jurors believe it.
In addition to that, I also got a chance to observe some other things. This case was a somewhat high-profile homicide with a claim of self-defense, and each side had a little over an hour to talk to the 36 citizens in the box. That isn’t a huge amount of time, but it was enough time for each party to get to know each potential juror at least a little. And both the state DA and the criminal defense attorney did a good job. Without fancy consultants (like me!) they relied principally on simple open-ended questions directed at each person. The questions themselves might sound trite or obvious, but they ended up being very useful under the circumstances. So, whenever you want to make sure you’ve spoken to everyone, and you’re stumped on a good follow-up for a particular individual or when you are welcoming a newcomer to the box, there are a few basic and simple questions you shouldn’t be scared to ask.
“What Are Your Feelings About Being a Juror in This Case?”
This question creates a good open-ended opportunity for the juror to bring up a hardship, or a cause issue, or really anything they want to say about their views on the case. All of that is helpful. As I sat back in the gallery hearing that question asked of many of my luckier peers, I noted that almost everyone said something useful in response. It is the kind of question that helps the potential juror become a little more three-dimensional, and in several cases it led directly to a cause concern or to information that informed a later strike.
“Do You Think You Would Be a Good Juror in This Case? Why or why not?”
One thing to be clear on with this question: It is not a test of whether the potential juror really will be a good juror. Instead, it’s just a measure of their self-perception. For example, if the individual has some kind of experience or attitude that cuts against your side, and they think they’re going to be a good juror, then that is a huge red flag. It highlights a lack of awareness of a bias, or worse, an intent to use that bias in the future. One consideration, though, is that you should never leave the juror with just a “Yes” or a “No” — always ask why. That applies to as many questions as you have time for.
“Tell Me About What You Do? What Is a Typical Workday Like?”
In the case I was called for, both sides wanted to know whether jurors were analytic or holistic, and whether they led “from the heart” or “from the head.” I’ve learned not to trust those self perceptions, which are often quite different from reality. A better approach is to learn what people do on a day-to-day basis. If they’re used to dealing with complexity, detail, facts, and logic, they’ll have a much easier time doing that as a juror. If, on the other hand, daily life means mostly avoiding complexity and relying on routine snap judgments, you can expect that they’ll look for a way to do that as a juror as well. If you want to know how people will approach information, look at how they already engage with it.
At the end of the day (and it really was the end of the day… they kept us long after it was clear we would not be needed), I am disappointed I didn’t make it further in the process, and I look forward to next year. It is good, though, that I got to spend the day in a courthouse, and I didn’t have to wear a suit.
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Other Posts on Voir Dire:
- Improve Voir Dire: A Trump-Jury Example Script
- Voir Dire: Before You Ask”Can You Be Fair?” Know What You Want the Answer to Be
- Voir Dire for “Safetyist” Attitudes
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Image credit: Taken by the author