Meaningful Jury Selection
Like a sporting match, a trial is a competition. Ultimately, there must be a winner and a loser; a hung jury is a tie, requiring a do-over. Competition, fear of failure, lack of education about juries, and other factors cause attorneys to focus on finding and striking those jurors that seemingly favor the opposing side. Prospective jurors readily see through this tactic, re-enforcing the erroneous belief that trial attorneys are all about tricks and deception. Only an honest and open discussion about attitudes and beliefs during jury selection, and genuine acceptance of varying points of views, may help prospective jurors overcome their stereotypes about trial attorneys.
Of course, that is not the only goal in jury selection. The true purpose of jury selection is to “voir dire” the prospective jury. Voir dire means “to see and speak the truth.” The goal then is to encourage prospective jurors to reveal their true attitudes and beliefs, even if they are antithetical to lawyers, the legal system, or the type of suit at issue. Although most attorneys want a jury made up of fair and impartial jurors, their execution is poor. Law schools are woefully deficient in teaching trial practice, and even more so in teaching jury selection. Further, few attorneys understand the psychological dynamics present in the courtroom.
There is one simple thing, however, that attorneys and judges can do to improve the process. Courts and attorneys should refrain from asking questions that elicit socially desirable responses. Often, when faced with jurors that have honestly expressed a different point of view, attitude, or belief, attorneys make the mistake of dishonoring the juror’s candor. Instead, they invoke leading questions that discourage an open and honest dialogue, such as:
“Juror x, can you set aside your beliefs and be fair and impartial?”
“Juror Y, are you willing to follow the law as given to you by the judge in the court’s jury instructions?”
“Are you willing to listen to the evidence and decide the case solely on the evidence or lack of evidence presented in this case?”
A juror is made to feel that if he or she does not respond affirmatively to the questions, then he or she will be perceived as lacking open-mindedness, intelligence, or integrity. This practice puts a great deal of pressure on jurors, many of whom have very little familiarity with the legal process and feel intimidated by the very setting of the courthouse. It is extremely difficult for jurors to feel comfortable publicly sharing their views when they are discouraged from genuinely expressing themselves.
Instead, the juror will give the socially desirable response in order to “look good” to the court and to the other jurors. Most potential jurors will not respond affirmatively if asked, “Are you biased?” See LaFAve, et. al, Criminal Procedure (2nd 1999). Conversely, most jurors will respond affirmatively if asked, “can you be fair or can you follow the court’s instructions?” Similarly, watching another member of the panel be questioned in this manner will almost certainly make jurors very reluctant to disclose their true attitudes and beliefs for fear of being singled out and made to feel badly for genuinely expressing themselves. This type of questioning results from a lack of understanding of the psychological underpinnings of self-disclosure interviews, and the chilling effect on honest and open self disclosure of questions seeking socially desirable responses.
Because the essence of voir dire is opening a dialog with prospective jurors in a way that encourages meaningful self-disclosure, the court and the attorneys should refrain from soliciting socially desirable responses. Instead, jurors should be invited to be themselves and should be honored and respected for sharing their genuine beliefs and attitudes, even if the attorneys do not like it. Only then will the process successfully unearthed crucial information about prospective jurors and result in a dialogue that really matters to the parties and the court.
Image credit Robert Couse-Baker.