Category Archives: Jury

WHY DON’T WE GET RID OF “DUMBASSED JURORS”?

I received this Email from someone whose address was: bob bdifalco@yahoo.com about my post regarding jury selection. He said:

“Lawyers ought to spend their time getting rid of all juries, and hyping up judges so are adequate without dumbassd jurors.”

JUDGE< When the constitution of this country was being debated jury trial was seen as an essential and far reaching civil right. The men who signed the Declaration of Independence and wrote the Constitution provided for three separate provisions in the U.S. Constitution to guarantee the right of jury trial. Article III, Sec 2 provides for trial of jury in the state where the crime was committed. The Sixth Amendment guarantees the right to a speedy and public jury trial. The Seventh Amendment of the Bill of Rights guarantees jury trials in civil cases. The right to jury trial in civil cases was specifically and deliberately added to our Bill of Rights as an essential right of all Americans.
There is a reason for the founding father’s concern about the right of jury trial. From the time of the Norman Conquest the issue of the right the ordinary citizen to trial by one’s peers rather than a judge was a huge issue. The founding fathers knew the history of England. They knew one of the key concessions to the people was the Magna Charta of 1215 conceding the right to a jury trial of one’s peers. They knew the history of the English Star Chamber secret trials by judges and its abolition as a grant of right in 1641.

Alexander Hamilton said: The civil jury is a valuable safeguard to liberty.” Thomas Jefferson in a letter to Thomas Paine wrote:
“I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

That’s why Jury trials were seen as such an essential protected right that it was put in the United States Constitution in the Fifth, Sixth, and Seventh Amendments of the US Constitution. When we are dealing with historical rights and constitutional rights of this magnitude which have been included in the Bill of Rights, one should be slow to arbitrarily decide to just eliminate them because of complaints about jury verdicts.

THE CHALLENGE OF JURY SELECTION

The subject of jury selection is particularly relevant now because of discussions in Washington state about eliminating preemptory excuses of jurors and because many lawyers generally find it to be a difficult art to master. The discussions in this state about elimination stem from our State Supreme Court who ask whether preemptory excuses should be simply eliminated. The argument for doing so is based primarily upon whether there is discrimination against minorities in the process of jury selection through this excuse process even though there are procedures to prevent this from happening. In my view it would be an injustice to eliminate this right on that basis because I feel the cost greatly outweighs weight of the assumed problem. If the system of challenge for cause was actually fair and effective it would not be as serious to do so, but the fact is that challenges for cause are for the most part unfair and not effective. Judges are reluctant to grant challenges because of concerns over the size of the remaining jury pool resulting in a possible delay of trial and a mistaken assumption that a verbal promise by a juror to set aside obvious bias can be relied upon. The truth is that most judges generally are not fully informed regarding the abundant research about human nature, decision-making and bias. Instead, they rely upon the idea that people can control attitudes and bias by will power. The research clearly establishes that this is wishful thinking. Human beings are not able to consciously control attitudes and motivations which are largely subconscious in nature.

In an excellent article by Susan MacPherson in February 2014 with the title “why do we ask jurors to promise that They will do the Impossible?” this subject was discussed. She points out that the traditional question put to jurors who have been honest enough to disclose a potential bias is this: “Would you be able to set aside that experience (attitude or belief) and decide this case only on the evidence you hear in the court room?” or another variation is: “Are you willing to follow the law as I give it in spite of your attitude?” These are the traditional “rehabilitation” questions judges are quick to ask in order to avoid granting a challenge for cause. The great majority of jurors are quick to agree that they have that ability to set aside bias, follow the law and can be fair in spite of the stated experience, relationship, bias, belief or experience even though it is an utter impossibility no matter how well intentioned they might be. Yet, judges generally are quick to accept the assurances in spite of the fact that such promises have been proven by research to be impossible even if the juror were willing to try.

As the author points out:

“Decades of social science research debunked the assumption underlying the “set aside” question. More recent neuroscience research dramatically illustrates how, outside the stimuli trigger, immediate reactions in the brain and other further proof that a request to “set aside” a relevant experience, attitude or belief is asking jurors to do the impossible. Jurors simply cannot flip a switch and shut off the influence of their own life experience or well-established attitude and beliefs.”

As important, the author points out that the traditional approach to attempt to rehabilitate the juror is also contrary to accepted knowledge about human behavior. She observes that we should stop adding to the burden of a juror by asking them to take on an impossible task with concepts like “set aside” and “rehabilitation”.

As to the challenge of jury selection, Dr.Amy Singer is a trial consultant in Florida I know and have used as a consultant. She wrote an article “Are you De-selecting the Wrong Jurors?” which I agree with totally. She notes that for years attorneys have focused upon juror demographics and used closed ended questions to figure out who they did not want on their jury. She correctly observes, however, that demographics are the least reliable basis of making such decisions. She notes that there are numerous studies which show that demographics have no correlation with jury behavior. As a result every jury voir dire should go beyond demographics and explore such things as value beliefs.

She notes that you should ask value belief questions and questions about the problem areas of the case in order to know who you might want to be excused from the jury. She also argues that it is important to identify how jurors relate to the problems and issues of your case. That involves life experiences and personality traits. Leaders who have had similar life experiences are likely to apply them and share their experiences with others in the jury room as “experts.” Dr. Singer points out that there are people on the jury who have hidden agendas concerning the outcome of the case as having a personal impact on themselves or with strong feelings about the nature of the case. There are ways in which to explore the existence of such jurors but one should the aware of these stealth jurors. She also points out that with limited time for juror questioning every question should count and should encourage participation by as many people as possible. Open ended questions along with giving jurors a chance to elaborate on their answers indicates that you feel their opinion matters to you. She encourages keeping the conversation going even when you hear an answer you don’t like.

These are some obvious observations about a complex exercise, but a good refresher on fundamentals to keep in mind. We are all in need of learning when it comes to jury selection procedures.

DISCOVERING THE STEALTH JURORS IN YOUR CASES

As trial lawyers we know the potential for a “stealth” juror on our panels. By that, we mean a person who has a secret agenda, an axe to grind which they conceal in order to get on the jury. See for example Molly McDonough’s article in the ABA Journal Law News entitled “Rogue  Jurors” http://www.abajournal.com/magazine/article/rogue_jurors/ in which she cites actual trials where such jurors were discovered. Well known plaintiff lawyers Gregory Cusimano and David Wenner have written an article entitled “Starting the Search for the Right Jury” in Lawyers USA http://www.winningworks.com/files/startingthesearchfortherightjury.pdf.  They state that outside research indicates that between 15 and18 percent of potential jurors would be fatal to one side or the other, usually the plaintiff. The research also shows that these stealth jurors want to make a statement or influence the outcome of the case in a biased way.

Trent Hammerstein has even published a book sold by Barnes & Noble titled “Stealth Juror: The Ultimate Defense against Bad Laws and Government Tyranny. He describes a stealth juror as “an ordinary citizen” who is not afraid “to exercise his right to judge not only the evidence in the case, but the very law” upon which it is based. While this is jury nullification, there is the same underlying kind of agenda for jurors who have an agenda of their own.

So, how do you discover people like this on your jury panel? Dr. Ken Broda-Bahm has written an article “Know a Stealth Juror When You See One.”  (http://www.persuasivelitigator.com/2013/06/know-a-stealth-juror-when-you-see-one.html.) He discusses the problem in the George Zimmerman case in Florida where a potential juror said he had little knowledge of the case. However, he was confronted with a Facebook post in which he wrote about the case, “I CAN tell you THIS. ‘Justice’…IS Coming.” This author has several recommendations for identifying people like this. These include the juror who isn’t contributing and isn’t saying much. They may be just keeping their heads down in order to escape notice. He also suggests not spotlighting the correct answer, but instead offering a choice of reasonable sounding options as a test. He advises a “realty check” question which invites an exaggerated agreement indicating someone who is trying too hard to get on the jury. Most important, he recommends a complete check on social media for the jurors when possible.

Dr. Jeff Frederick wrote an article “Stealth Jurors” for the American Bar Association in September of 2012. He points out that since the goal of such a person is to get on the jury the most common strategies are (a) say as little as possible about their opinions, backgrounds and experiences (b) avoid making any extreme statements and (c) steadfastly insist they would be fair and impartial. One type of person use “technicalities” to avoid detection by not answering any question they don’t have to and providing answers that are correct but misleading. Another type of person is willing to lie or conceal. He suggests some of the ways to identify these jurors include:

  1. Answering in an unduly precise and restrictive manner
  2. Answers inconsistent with appearance, nonverbal characteristics or other answers
  3. Answers inconsistent with their own interests

Dr. George R. Speckart wrote an article in the National Law Journal entitled “To Down a Stealth Juror, Strike First.” http://www.courtroomsciences.com/LitigationConsulting/TrialConsulting.aspx. He recommends a jury questionnaire for detecting such jurors. He says there are three principle methods for detecting stealth jurors: (a) analyzing nonverbal behavior associated with deception (b) identifying discrepancies between written answers  and oral voir dire answers and (c) determining bias through indications of bias.

Dr. Jo-Ellan Dimitrius suggested in an article “Spotting the Stealth Juror” suggested some of the following questions to a prospective juror:

  • Have you followed in the media any cases similar to this case?
  • What did you think of the outcome of those cases
  • Have you written a letter to the editor? About what subject
  • Have you ever called a radio talk show? What station and what subject
  • Do you blog? What is the subject?

In summary, some of the techniques one should consider include the following:

  • Ask about significant experiences which can lead to the discovery of bias.
  • Ask silent jurors why they have been quiet.
  • Use “reality check” questions to see if the answers show an exaggerated need to be on the jury
  • Ask questions that give choices for answers to help gauge sincerity
  • Be cautious of jurors who avoid a direct answer with “it all depends.”
  •  Have your co-counsel and paralegal monitor the other jurors while one juror is being questioned for tell-tell non-verbal reactions.
  • Watch for the signs of such a jury which include (a) unduly precise and restrictive answers (b) answers which are inconsistent with appearance, nonverbal behavior or other answers and (c) answers which are inconsistent with their own self interest
  • Evaluate written answers to jury questionnaires and verbal responses and behavior