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A version of this article first appeared in The Los Angeles Daily Journal.
Exploding the Myths Concerning Voir Dire
When it comes to tips for picking jurors, there sometime seem to be as many moldy ideas bumping around out there as there are trial lawyers.
For instance, defense counsel should always make sure to pick an Irishman for the jury because he will be emotional, kindly, and sympathetic. "You would be guilty of malpractice if you got rid of him," the famous trial attorney Clarence Darrow once counseled. (Mr. Darrow also wanted Universalists, Unitarians, Jews, and agnostics on his juries.)
Or what about these other hoary notions for selecting jurors? Women are more compassionate than men in criminal cases. African American jurors are always going to give African American defendants a break. Defense counsel should never take a wealthy man on a jury - he will convict unless the defendant is charged with stock fraud or something similar. Prosecutors should seat grandmother - types as jurors in wrongful death cases concerning children. The ideal prosecution juror overall is the little old Lutheran lady in pearls - quick to judge and slow to forgive.
These gross stereotypes should clearly be perceived as such, the great Mr. Darrow not withstanding. (Considering the widely-accepted courtroom line on women, it seems odd that Mr. Darrow so distrusted women jurors.)
Still, many trial lawyers continue to pick jurors on the basis of just such woolly stereotypes and arcane prejudices. This tendency remains despite overwhelming scientific evidence that such variables as race, age, gender, and so on fail to correlate in any meaningful way with jury verdicts.
It comes as no surprise that many trial lawyers often perform poorly when picking jurors. Martin F. Kaplan, a psychology professor at Northern Illinois University and an expert on jury research,. organized a study of juror selection to determine who would fare best in picking jurors - lawyers or lay persons. Overall, the lay persons picked jurors correctly 50 percent of the time ("correct" being defined as selecting jurors who voted for the desired verdict). The lawyers didn't perform as well. The study showed that the attorneys would have been better off picking the names of jurors blindfolded out of a hat, then sitting them in the box.
The reason many trial lawyers find it difficult determining ideal jurors for their cases is due to their "demographic dependency." They simply cannot break free of the fossilized myths and old wives' tales that continue to exist concerning jurors. They often seat jurors who end up unexpectedly killing their cases as a result.
Psychologists know that stereotypes concerning demographic groupings are usually misleading. People's attitudes do not just pop out, pre-formed, from the supposed cookie - cutter molds of race, color, sex, and so on. Not all Blacks are liberal nor all women compassionate. Many businessmen have hearts of gold. Many social workers and church leaders do not. And some elderly grandmother-types are more at home playing poker in Las Vegas than they would be knitting in the parlor.
It is understandable that attorney myths concerning ideal jurors have persisted over the years. In the courtroom, millions of dollars in damages, even the very life or freedom of a defendant, depend on how jurors will view things. Faced with these immense stakes, it is natural that attorneys will want to use any available benchmarks to seat jurors who will see things their clients' way. In the absence of other verifiable data, objective variables such as race, age, sex, and so on can be enticing. And in a random, luck-of-the-draw kind of way, these variables may seem to offer better guidance than none. The attorney who thinks this way, however, often falls victim to a common cognitive distortion.
Here's what I mean. You try a case and there is an army colonel on the jury. You get a losing verdict and end up thinking, "No more colonels; they're too conservative." So every time you have a case in which you run into another colonel or other army officer during voir dire, you de-select him or her. This means you are never able to prove or disprove your hypothesis that colonels are conservative and should not be seated for trials.
Of course you pass along your anti-colonel "information" to all your law partners. They in turn make sure to stay away from colonels for their own cases. As a result, the myth of conservative colonels as crummy jurors is perpetuated. Which brings us to the primary psychological rule attorneys should consider when it comes to jurors: Those variables that are most observable are least predictive of verdicts and jury behavior. If demographics do not offer reliable clues to juror attitudes, what does? The anseer is jurors' values and beliefs. Numerous jury research studies indicate these to be the key factors, along with life experiences, that correlate with how individual jurors will actually behave when deciding a case.
Our values and beliefs shape the way we view the world and all that happens in it. This shaping manifests itself as attitudes - the basic filters by which jurors weigh the evidence during trials. Uncover the core values and beliefs and you can predict attitudes. Predict attitudes and jury verdict behavior can also be projected.
So what is the best way to uncover jurors' values and beliefs during voir dire? The way not do it is by asking close-ended questions, the technique most attorneys use to question jurors. Close-ended questions are excellent when questioning witnesses because they prompt narrow responses that clearly delineate the case facts. But narrow responses are the last type of responses attorneys should want from jurors. With close-ended questions, that's all they will get. Such questions prohibit jurors from responding in an expansive way. This means the attorney never gets a chance to understand who the jurors really are, and, more to the point, what their attitudes will be concerning the case.
"Have you lost your mother?" is a typical close-ended question. Jurors can only answer affirmatively or negatively - restricted responses that reveal little. Attorneys will do much better if they pose such questions so that jurors must answer with "I think," "I feel," or "I believe" - type responses. "What are your feelings about losing your mother?" is going to elicit far more useful information than a close-ended question.
Open-ended questions give jurors the freedom to say what they want without fear of criticism. Open-ended questions usually begin with "What are your feelings about..." or "Please share your thoughts about..." or "Please tell us your opinion about..." Questions usually end with references to actual case issues - "jury verdicts," "medical malpractice law suits," "people accused of child abuse," and so on. Open-ended questions promote honest exchanges about the primary case issues and the way jurors are likely to feel about them. As such they provide the most straightforward way to elicit information about jurors' values and beliefs. People truly do need to express their feelings. Ask jurors to share their feelings about the primary case issues and they will do so gladly.
And don't worry if the responses are not what you want to hear. The only way to get panelists off the jury for cause is to let them expose their biases. So let them state fully exactly how they feel. If their biases are extreme, they will dig there own holes right there in front of you.
Attorneys should not treat voir dire as a job interview in which the juror is applying for a position during the trial. This makes jurors feel nervous and uncomfortable. Yet this is exactly the way many attorneys conduct voir dire, asking such loaded questions as "Can you be fair?" or "Do you have any biases?" Obviously, jurors will be bound to answer such questions with socially acceptable responses that will lead attorneys away from the jurors' true feelings.
You need to be sociable during voir dire. Come away from the desk or podium so there are no barriers between you and the jury. Establish a comfortable distance with the jurors. Treat them as newfound companions whom you want to get to know. Pose your questions to them in this spirit. It's important to reinforce all juror responses, whether positive or negative. Say, "I'm glad you brought that up, sir. Other people feel the way you do. Can you elaborate?" Psychologists know that reinforcement increases the probability of a response.
So how do you get jurors to deliberate in front of you? Instead of a dry question-and-answer session between jurors and attorney, voir dire should be organized as a collective social conversation. The idea is to get the jurors speaking as much as possible, so that eventually, they are speaking - deliberating - with each other. The attorney must first establish a conversation with and among the jurors, and second, keep it going. The following dialogue illustrates how this can be accomplished.
Attorney (to the first juror): "What are your feelings about lawsuits?"
First Juror: "I don't have a problem with lawsuits, but I do have a problem with attorneys' fees."
Attorney: "Thank you for that honest comment. I'm glad you brought that up. You're not the only person who feels that way." (To the second juror:) "Sir, what do you think about what she just said?"
Second Juror: "I'm a salesman. I work on commission. Sometimes I put a lot of effort into a sale, but it just doesn't go through, so I can relate."
The attorney then polled the room and everyone volunteered his or her opinion. By the time the last person spoke, all had agreed that people - even lawyers - are entitled to make a living.
The attorney in this example above did not attempt to close down the conversation at the first sign of trouble. Instead, he let it evolve. In so doing, he was able to pick up excellent information concerning how the individual jurors felt about attorneys' fees, damage awards, and associated issues. If he had tried to stifle the conversation, it's likely that the same subjects would just come up again later in the jury room. And he would not be able to guide the conversation in any way.
When it comes to trial matters, attorneys are control freaks. Indeed, they must be, considering the stakes at risk inside the courtroom. Attorneys believe that if they don't exercise absolute control over every minute aspect of the case, they and their clients will go down in flames. This extreme need to control everything inside the courtroom is particularly evident during voir dire. Attorneys try to brainwash jurors during voir dire. They structure questions to force jurors to commit to a particular point of view. They ask jurors highly restrictive questions - "Are you familiar with the accident scene?" - to keep their responses tightly reined. And they are extremely reluctant to ask questions - "What do you think about jury verdicts?" - that may prompt answers they fear will contaminate the other jurors. When it comes to jurors' values and beliefs, attorneys should realize that contamination is largely a needless worry. Beliefs are not contagious nor easy to change. Let's say that a juror drops the following bomb during voir dire: "Doctors shouldn't be held responsible for every mistake in judgment." Instead of worrying about contamination, the clever attorney should see this bald statement for what it is - a special opportunity to determine with certainty the key attitudes of the other jurors.
He or she should immediately ask for a show of hands to learn how many people share the expressed viewpoint. Those who do have not suddenly become contaminated; they have probably felt this way for some time. But now the attorney knows who they are. Just as important, the attorney also learns who the jurors are who feel otherwise. The task now is to examine the intensity of beliefs among the negative set of jurors. The more intense the beliefs, the more likely it is they can be dismissed for cause.
If negative attitudes and beliefs are expressed during voir dire, you can be sure they will also come out during deliberations. Obviously it is better that these negative feelings be aired while time is still available during voir dire to do something about them. It will be too late once the jury is sequestered.
The bottom line on voir dire? Attorneys should not regard it as a dangerous lion that must be tamed. Instead, it can be a trusted bloodhound, leading the way to successful verdicts. To achieve this transformation, attorneys simply need to put away the whips and chains and bring out the dog biscuits. In other words, attorneys need to adopt an open, unguarded approach with jurors so jurors can do the same. You cannot learn what makes jurors tick in any other way.