Category Archives: Jury Selection


I have long been a fan of the website The Jury Expert:  One of the research papers it has published is: “The Ubiquitous Practice of ‘Prehabilitation’ Leads Prospective Jurors to Conceal Their Biases.” authored by Mykol Hamilton, Emily Lindon, Madeline Pitt, and Emily Robbins from Centre College. This article explores juror bias and focuses on the effect of efforts to emphasize the significance of  lack of bias by the judge and attorneys. It primarily examines the effectiveness of the emphasis on being a fair juror as it impacts the jurors admitting they have a bias.

As to bias generally in jurors, it has been clearly demonstrated that where a strong bias exists, human efforts to not let it influence us are utterly impossible. Yet, many trial judges and appellate courts appear believe that it can be done. Hence,their unwavering confidence that they can rely upon a jurors affirmative response to their question: “Can you set that opinion aside if I instruct you on the law and consider the facts objectively?” Lawyers also would like to believe that they can “re-educate” the prospective juror to see the error of their bias and  then can rely upon the jurors assurance they can now be fair. All of these beliefs are simply invalid.

According to the law the sole legal purpose of voir dire is to expose bias in prospective jurors which would prevent them from being a fair and impartial juror. The article cites research which showed that instructing jurors they must set aside any knowledge, experiences, attitudes, or beliefs that might bias them is asking them to do the impossible. The article notes: “humans are not robots. We are notoriously bad at preventing our biases from influencing us. Furthermore, we strongly, but erroneously believe that we can control our biases and are likely to tell judges and attorneys that we can be fair and open-minded even if we cannot.” Some of the other conclusions of the article are:

  1. Most people are totally unaware of how much their attitudes affect their behavior and have a bias line site
  2. People are unsuccessful in setting aside bias even if they are aware of the bias. The bias operates unconsciously to influence us.
  3. Even if the prospective juror is aware of their bias unless they confess it there is no basis for a challenge for cause. Humans don’t want to admit they are imperfect and research shows that attorneys and judges are not good lie detectors in being able to tell those who claim they are impartial when they are not.
  4. There is a factor of community pressure from the other jurors and the pre jury lecture on the need for fair  jurors. It puts pressure upon the prospective jurors to give the answer that is expected from them about existing biases and to deny their existence.
  5. Pressures to give the expected answers about bias exist when the prospective juror is seated. They see the judge on the bench, the court reporter taking everything down, a room full of lawyers all focused upon the jurors in the box. This puts pressure upon the juror to give the “right” answer

The authors of the article made a content analysis of some 600 voir dire interviews in 11 high profile cases in different states. They studied transcripts. recordings and videos when available of the jury selection process. They looked for the discovery of bias. They reviewed the instructions given by judges to prospective jurors and comments by the attorneys about fairness and  bias expected.  Their conclusion was that efforts by the judges and and attorneys  simply leads prospective jurors to temporarily suppress their bias into falsely claiming they had no bias. They found that prospective jurors rarely admitted to existing bias. Their conclusion was that the lectures and instructions  to the jurors about the  need for unbiased jurors actually resulted in the jurors being less likely to acknowledge known bias.

The authors suggest a change in how the judges instruct jurors about this matter  emphasing the importance of honest disclosure.  For example, “While you have been lectured to death on the importance of being objective, probably to the point where you fear admitting any negative feelings, let me assure you that the goal is to understand your true feelings and not to bully you into giving an answer you think we want to hear.” They suggest  indirect inquiries to explore the bias issue. For example, in a high-profile case:  “In talking to friends and family about the case, have you gotten the feeling that they have formed some opinions about the case?”

In a comment to the article Charli Morris, a juror consultant, noted that the laws’ idea of an ideal juror was one who had no knowledge of the facts and no interest, financial or otherwise, and the outcome of the case. What the parties are entitled to is a fair trial. They deserve fairness from the court, from counsel, and from the jury. The goal is to eliminate arbitrariness or randomness  in a trial. To establish the bias for a challenge for cause, the author suggests this approach:

  1. Establish the extent of the jurors potential for partiality. This is done by exploring sufficiently the dimensions of the jurors bias or inability to be fair.
  2. Quantify it. It’s important to establish the extent of the bias. Words like “definitely” for “very” or “strongly” are words which jurors are reluctant to adopt because it makes them appear to extreme or close minded. Instead a 10 point scale is recommended to quantify the degree of the bias
  3. Get it all down. The author recommends a methodical slow process so that the essential words are recorded and aware by the judge.
  4. Add it all up. One then should deliver a narrative of the school of the inability of the juror to be fair and to make a good record on appeal.

I think this suggestion is technically correct and I would add that my personal view is that my goal was not to disqualify jurors for cause. I accepted that every juror would  have strong bias agreement about tort reform attacks on cases just like this. I accepted  the fact that they would all have a bias about trust me and my client since  we were wanted a money verdict from them. I assumed most would have strong beliefs  and values that might run counter to the concept of this kind of case. I assumed they would search their long term memory for personal experiences which they would  try to apply to this case to assist them in arriving at a decision. I knew that it would  be impossible to eliminate everyone with a genuine bias. I believed it conveyed  the wrong message to be cross examining them for  reasons to challenge them. I assumed that some would resent my challenge to a  fellow prospective juror and  if I failed in the challenge I would have to use a limited personal right of excusing them. “Don’t  strike the emperor unless you kill him.” is a valid proverb.

Consequently, my viewpoint was it was better to first identify with their beliefs  and values. Join their tribe as the first  step. For example: “I’m not going to ask you how you feel about cases  like this because I think we all  agree – How  many of you think their  are  too many frivilous lawsuits, brought by greedy lawyers asking for money damages? raise  your hand” Before asking to raise their hand, I held my hand up first.

The second step is to distinquish your case. “Is  it possible, do you think  that their  might be valid legitmate lawsuits filed by deserving people  and represented by honest  lawyers?” Each of these were followed by discussion. If their were the  committed biased juror on the panel I was unable to gently talk out of serving my steps for setting  up disqualification was:

  1. Fully identify the nature of the bias without arguing or attempting to educate. Full, nonjudgmental acceptance of the bias.
  2. Establish it was a reasoned  out conclusion well grounded  in  their  mind. “I suspect you’ve  thought this out pretty thoroughly? This isn’t something that just came to you this morning but is something you have felt for  some time?
  3. Establish that the juror isn’t going to change their mind. “I doubt I could talk  you out of this even  if  we had the time to discuss it? You feel strongly  enough about this and  are honest  enough about your feelings  I expect that even if the judge were to ask you if you could set it aside and follow the  law you would feel compelled to honestly say you couldn’t?” (Note the importance of innoculating the  juror from the judge who will immediately try to talk the juror into saying in spite of the bias they would  follow the law).
  4. Asking the  juror to voluntarily step aside before making any challenge. “You know  there are other cases going  on here, I gather you would feel more comfortable serving on a case other  than this  one in light of your honest feelings we’ve discussed. Would you feel better asking the  judge to be excused from this  case?”

Bias is bias and  it rests in the unconscious more than the conscious. That’s why the obvious racist can honestly say they have no bias against minorities because at  a conscious level that’s really what they believe. Getting jurors to identify bias under court room conditions is even more difficult. This is a great challenge for judges and for  us.


Two of my partners and I start a jury trial in Seattle a week from now. Originally set to start on Monday the trial judge decided the case wouldn’t fit the scheduled time and it was moved to another judge to start a week later. There is a train load of paper flowing in from defendants consisting of motions, briefs and documents. The defendants have been attempting to move the venue and/or continue the case and this onslaught of paper looks suspiciously like an attempt to intimidate the new judge into a delay of the trial. I’m relieved of the burden of responding and have been concentrating on jury selection and the damage portion of the opening statement. Of course, there are mountains of motions to limit both drastically which will be heard this week.

So, here’s the issue. There is a certain amount of demographics, opinions and values it would be important to know in evaluating a potential juror. To obtain that kind of information you need to ask questions for information or at least framed in a way that produces the information. On the other hand, it is even more important to have rapport with the jurors. To accomplish that you need allow free and open discussion rather than a type of interrogation. In most courts you are not allowed enough time to do both very effectively so there is a tension over the approach to use.

For example, if you want to find out values and opinions you need to frame questions that essentially present two viewpoints and ask which they favor. That can be done on a numerical scale, such as “on a scale of 1 to 10 where are you on this scale?” Or it can be done generally such as “which way do you lean, even if only slightly?” Questions can be framed in a general way such as “name three people you admire.” But, the bottom line is these are questions calling for answers and not open discussions about general matters which lead to a bonding relationship.

It is true you can accomplish both if done artfully, but most jury consultants will want specific questions with answers that can be measured like the previous examples. Yes, one way to achieve this is through written questions the jurors fill out. My experience has been that when we propose a non-slanted one page questionnaire the defendants always propose several pages and most are slanted. The judge then sees a problem of getting them filled out and back resulting in a decision not to use them or forcing me to object to the use. It would be fine if the printed form the judges have jury panel fill out had more information, but it is very limited. This results in having to have a balancing act between information gathering and rapport building. Furthermore, how do you screen the entire panel with the limited time you have. Raising a hand is one way, but does not involve one on one communication.

The result is you need to frame a limited number of information questions, a limited number of questions about the danger points in the case and the rest intended as general bonding discussion. That means having to establish a priority list and limit the areas to fit available time. It’s important to try to talk to each panel member if possible, just to have them say something to you instead of just raising a hand. For me, that means a lot of preparation planning about fitting these goals into the time allowed. That’s a real challenge when you are allowed twenty minutes, but it’s important to try to do it right.

For me, that means (1) determining what major issues or danger points there are in the case that should be brought up in voir dire and then selecting the three most important (2) trying to determine the likely number of the panel that could be on the jury after the court has conducted its voir dire and excused jurors by considering the total peremptory challenges allowed, estimating the likely number of challenges for cause that could be granted added to the number of jurors as well as alternates. The rest of the panel, not included in that group, I’m likely not to talk to as priority decision. (3) Selecting questions likely to reveal deep seated values and past significant life experiences and (4) framing general discussion questions with no particular objective than to encourage discussion.

This process is a lot more involved than the idea of “just standing up and talking to jurors” which is the conventional wisdom of some. It is also not intended to use challenges for cause with a goal of eliminating all “bad” jurors as that is time consuming, an impossible task and negative producing for the remaining jurors. Nor is it a process of convincing the jurors to a point of view which is next to impossible in voir dire.

All of this is easy to discuss in generalities like this, but a skill which is difficult to learn and apply, but essential to know.


Well, I made back from the Wyoming trial college. This year’s class was a great group who were motivated to learn. The subject that week was primarily jury selection. We also started direct examination after demonstrating the listening exercise where people learn how to actively listen. We had the benefit of Gerry doing a long jury selection demonstration. I was able to work with the lawyer instructors in various workshops where the attendees practiced how to do it. On Tuesday night I gave a talk on communication, jury selection and a brief discussion of final summation. I had the benefit of working with staff members who were graduates of the program and most of whom I have known for some time. We had an outstanding psycho-dramists, Kathie, as well as one of the finest teachers of communication I know, Josh Karton.

There was much to learn mostly by me from watching the lawyer students work and having illustrated why certain techniques are good and others bad .so it turns out to be a mutual learning experience even though Iam regarded as an instructor. So, here are a couple of things Gerry did I thought were very effective and worth sharing with  you.

1.  You don’t know me. We don’t know each other. You don’t know my client, James. You don’t know judge Smith or defense counsel. Yet, you need to know the truth and I am afraid even though I have been a lawyer for many  years. You have such enormous power and responsibility to do the right thing that it frightens me. I am wondering if this is a little frightening to you too? Do we both have the same kind of fear about doing our job  here? How do you feel about that?  Comment:  Creating a common bond of mutual feeling gives idenity with the group, being a part of the group or, as Gerry calls it, “the tribe.” When he gets affirmative responses he reinforces this idea with statements like “We have that in common, don’t we?”

2.  Gerry suggested that  humans have a  need to be part of a group,  a tribe. We form fan clubs for celeberties, we become fans of atheletic teams, we join clubs and we are motivated to be with others who think alike. That also means we don’t like to be excluded. We have a tribal need which flows  from our idea of survival by group protection. When we began excluding people from the jury we cause aniexty on the part of the jurors  as well as resentment from the excluded juror. Our overall objective in jury selection should not be challenging for cause and exclusion, but,  instead, inclusion. We want the jurors to see  us as part of their tribe, sharing their values and demonstrate that our  case is consistent with those values.

3.  Aren’t we all held to the same standard  of  care, you  and me  and everybody? We wouldn’t give anymore rights to someone than anyone  else gives, would we?Shouldn’t everyone get  the same fair deal  no matter who they are? That sounds fair  to me . Does  it sound  fair to you?

4.  Well, what would you do if you were me? Suppose our roles were reversed. What  if you were the lawyer representing James here and  a juror said to you: “I  don’t people should be suing doctors.”?  What would you say to them as James, lawto me. Does  it sound fair to you? How  do you feel about that?  Why?

I think the most common mistake the demonstrations showed was that (1) lawyers don’t really listen to juror’s answers (2) lawyers have a problem of body language which is inconsistent with their words (3) lawyers  are not comfortable with answers  they don’t like hearing and lawyers think about themselves and  looking good instead  of being natural people.

I watched lawyers break eye contact during an answer and  look away for some  reason. If you clearly want to demonstrate to someone you don’t have any interest in what they are saying break eye contact  while they are talking  and  you might  as well tell them: “I’m  not interested.” It  doesn’t make any difference  if  you are making a note or  whatever your excuse is, it’s always an insult. They also, too often, failure to make clear they heard the person and  acknowledge what  was  said. They do that in a variety of  ways  including ignoring  what was said  and asking  someone else a  question.

Lawyers are not conscious of their facial expressions, hands, posture and body language when they  are talking to make sure  they are congruent. We  know if there is conflict between body language and  words, body language will always be what prevails. Tone  of voice, pace of speaking and body language  must be congruent with  the words you speak to be believed.

The most  common observation  is  how  uncomfortable lawyers were when a juror  gave an answer they didn’t  want to hear. The most common reaction was  to try to argue with juror in a low keyed way, but there is  no way to argue with someone without it being  an argument  and you don’t  make friends  arguing with them. A lot of  the lawyers wanted  to  rush on to some other juror they hoped might give them a better answer. Some were  totally befuddled  and  didn’t know what to do or say but  with their  expression and body language communicated disapproval. None of those reactions will bond you with a juror. The only, and I do mean  only, response that has  any chance of producing a feeling  a common unity  or trust with such a juror is total and full agreement or at at  a minimum acceptance of the right of the juror to feel the  way they do.  If the response is not  totally nonjudgmental the response is  harmful  and the wrong one.

So,  for me, the  rules for jury selection include real, intense listening to jurors  answers. That involves unwavering eye contact as long as they are talking with a  pause when they  are done before breaking  eye contact with that  juror. It involves nodding to signal I am hearing them and any  other body language  to do the same. It involves an acknowledgement of some kind when they are done  and always a nonjudgmental agreement of their right to their position.  There is no way to contaminate a jury panel so don’t  worry about it.

I want my facial expressions, gestures, posture and  tone  of voice to always  match what I am saying. Communication requires congruency of  both.

When the juror attacks the kind of case I’ve brought, or lawyers  like me or a  key issue in my case I can immediately go  into challenge for cause mode. I can try  to show them that they are wrong about me or the case or  the issue. I can do all kinds of  things  in response, but the only correct  response is total calm and a nonjudgmental acceptance of what they said. Not rushing to some other juror, but  talking to the juror about what was said. For example: “Well, I can sure understand  why you feel  that way and I’ve got to  tell you a lot of  other  people feel exactly the same. Not  only that, but I want you  to know we appreciate your sharing  your feelings so honestly about it. Thank you. So, can we  talk some  more about this? etc”  And if it appears  there is  no way  around some serious attitude we discuss what to do about it. Anyway,  that’s how  I handle it. Why? Because there is hope this juror might see this case or issue as an exception and  because I want credibility with the  other jurors. Someone who is credible and willing to listen to everyone. Someone they can trust.

Well, that’s  my lesson for today.  You don’t have to agree with me as  everyone  has  their own style. I can  only tell you it is me.