HOW YOU ASK THE QUESTION INFLUENCES THE JUROR’S ANSWER

Those of you who  read this blog know my appreciation of the website The Jury Expert.  http://www.thejuryexpert.com/ Mykol Hamilton and Kate Zephyrhawke published an article at the website: “Revealing Juror Bias Without Biasing your Juror…” which is worth reading. Their research and that of others demonstrates that the form of the question lawyers ask jurors can, and often does, pressure people into underestimating their own bias. They point out that such questions can drive the juror bias mentally underground by exerting social desirability pressure or pressure to answer the question in a socially responsible manner. The result is answers which are not a true reflection of how the person really feels, but rather answers that are socially or politically correct.

They found that lawyers commonly used language which encourages the juror to answer the question the way in which the lawyer  wants it to be answered.  The authors refer to this as “prehabilitation.”  They also noted that both judges and lawyers rarely wait  until a perspective juror has conceded a possible bias before  they start asking leading questions and prodding the juror towards the answer they want to hear. They conclude that the message the perspective jurors received before they’ve even been given a chance to explore their own personal bias is:  “if you want to look good to the court, appear competent to your peers, and convince yourself that you are fair-minded,  answer all “I’ll be a good juror” questions in the affirmative. If you want to feel foolish , look like a bad American  and face more questioning and pressure  to say otherwise give them the wrong answer.

An example of such  questions  are:  “You seem like a reasonable person. Do you think you’ll be able to keep an open mind and base your opinion solely on evidence that’s presented in court?” It’s a leading question pointing to the answer you want to hear. Or  take  the question ” In your opinion  is the defendant innocent or guilty?” It resulted largely in answers that  were presumed to be socially correct by the juror,  i.e. “Innocent.”  After all, they have watched enough  TV court programs  to know that  the defendant is presumed innocent.  However, in one survey  a comparison was made with that question  and this change: “If you had to say you lean one way or another right now  about the defendant’s guilt or innocence , which way would you lean? ”  The change in the question  from the previous question resulted in a substantially higher  admission of bias on the part of the  person answering. How you frame the question influences the honesty of the jurors answers.

The authors  conclusion is that  the more comfortable the perspective juror feels  answering  honestly about  his or her own opinion,  the more likely it is an honest answer will be given. Their recommendation is to frame  questions  encouraging  honest  answers  by offering choices of  measurements  of the strength of feelings. Here are some examples  of these kinds of questions:

    •  How would you answer  your ability  to put aside your present  feelings about this  and base your  decision only on the evidence and law: (1) would be able to put it aside (2) could easily put aside or (3) might have  difficulty  putting it aside.
    • If you had to say you lean one way or another right now about the guilt or innocence of the defendant,  would you say you lean heavily towards guilt, somewhat towards guilt, somewhat towards innocence  or heavily towards innocence?
    •  Do you imagine it might be difficult for you to go into trial  with the belief  that the defendant is not guilty?
    •  How easy or hard do you feel it would be to assume the defendant is not guilty, on a scale of 1 to 10  with one being the  hardest and 10 being the easiest?
    •  How would you answer  the question  about  doctors being held accountable  for their negligence : (1)  strongly disagree (2)  disagree (3)  neither agree nor disagree (4)  agree or (5)  strongly agree?

The conclusion  is that the easier  it is for the juror to respond  comfortably the more likely  the honesty of the answer. making it comfortable for jurors to express doubts about their ability to be fair, or to ignore pretrial publicity, or to presume innocence  increases the likelihood that the justice system will get honest answers from potential jurors  according to the authors. That’s why I favor questions that are open ended like: How do you feel about…” and the like which encourage honest answers.

I think we all agree with these conclusions because most of us have experienced the frowning judge saying to the juror who has just admitted they have a bias something along the lines “Now, I’m sure you will be able to put that opinion aside and base your decision solely on the law I will give you and the evidence you hear, isn’t  that so?” Judges who use this improper approach do so with calculation they will get the answer they want because they are concerned about efficiency: “Let’s not waste  time. Let’s move this along and get going.”

But, we lawyers are often as guilty as the judges in trying to influence an answer we want. Why? Well, because we are afraid the wrong answer might prejudice the rest of the jurors and we won’t know how to deal with it. So, like children hurrying past the cemetery at night, we want to avoid the fright of having to hear what we don’t want to hear. What’s really sad about that idea is that we should have exactly the opposite goal. Get people to tell you now what they don’t like about your lawsuit and not wait until after the verdict when you ask them why they voted for the defendant. Furthermore, we need to encourage full discussion about the problems in our cases because it inoculates against stronger feelings in that regard later in the trial. We want to be first one to discuss the problems. We want to encourage and reward the jurors who express strong bias about our case. We need to frame questions that make them comfortable doing so.

I recommend David Ball’s excellent books on trial with suggested questions like the above. I also like Robert Hirschhorn recommendations in the book Conducting Voir Dire with Lisa Blue and published by Trial Guides. Of course, the workshops and courses taught by the Spence Trial College on voir dire are excellent.

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GERRY SPENCE WITNESS EXAMINATION EXCERPTS

 In 1985, a man was shot dead on a rural road in Lincoln County, Ore. A teenage boy and his mother were indicted for the crime. Gerry Spence took on both cases for the defense pro bono and faced off against a young prosecutor named Joshua Marquis in the juvenile’s trial; the attorneys did not take a shine to each other. So contentious was the trial that they both ended up before the Oregon State Bar. A special report in the bar matter described their relationship as “reveal[ing] a degree of hostility and vituperation unique in our experience.” The bar charges were dismissed, but the animosity remained. Spence wrote a book about the Oregon trials The Smoking Gun.

I was at the courthouse in Portland during a day or two of this trial. I was able to spend some time with Gerry and his partner during recess. He did an amazing job of obtaining an acquittal for his client. I have part of the transcript of that trial. I recently re-read Gerry’s examination of the  polygraph operator  from that trial. Gerry’s position was the accuser, wife of the deceased,  was actually the one who accidently shot her own husband and then blamed his client who was a neighbor.  He called the polygraph operator to show the accuser had failed the polygraph test. I’m setting out a few illustrations from that transcript for your consideration.

One thing Gerry did was to re-create how the polygraph was conducted by his assuming the role of the person being tested and having the operator go through  the procedure:

Q. Do it, please.

A. Well, the first thing I do – it is important you understand exactly what a lie is, and I would ask you to give me a definition for lying, Mr. Spence, how would you define it?

Q I would say a lie is when I intentionally tell you something that is untrue

A..What is truth to you, then?

Q. Truth is something that I believe.

A. Okay. You are one up on most people. Most people say the truth is what actually happened or they try and equate it to being factual.

Spence then had the operator go through the procedure demonstrating with him as the subject. Re-enactment in the courtroom is a very powerful tool we need to use a lot more than we do. The famous criminal defense lawyer of the 1920’s, Earl Rogers, was famous for his courtroom recreations to prove his point on cross examination.

I was interested in how Spence handled the judge, who had more then a few occasions to  get involved with questioning the witness.  Here’s an example after an objection by the prosecutor and a long exchange between the court and prosecutor.

Mr. Spence:  I withdraw the question.  I must say that it was, I think, a useful colloquy between the court and counsel for which I thank both the court and counsel to help me

This is what happened after there was a defense objection and the court went through a summary of his understanding of the point involved.rame these issues were struggling with.

The court: I think that was the point.

Mr. Spence: Well, you did it so much better than I did. (then Spence to the witness) I very seriously wish I had put it to you in that fashion the judge just did , but I would want  to know something else.

Here’s an example of putting the issue directly to the witness so there is no question about the point Spence is trying to make:

Q.  You see the problem  with where we are,  Mr. Tolliver, is that you can remember those things that you need to remember like the test was invalid, but the circumstances surrounding that, you sometimes are hazy about which indicates, would  it not,  the need for proper record keeping?

This is a good example of telling your story in cross examination and not waiting for final argument to explain the significance of what happened on cross.

Q. You didn’t leave room in your mind for the proposition that the state’s principal eyewitness was triggering a response at -14 (which indicates lying) simply because,  as your own chart showed you, she was lying?

A. That is a definite possibility, Mr. Spence, yes

Q. Well, if that is a definite possibility and you knew it was a definite possibility, why didn’t you take some steps to get that matter resolved.

A. Because it’s not my responsibility to get those matters resolved.

Q.  Didn’t you have any calm of conscience yourself in knowing that this woman was now going before a grand jury and was going to take an oath and was going to testify on a matter against another woman  when you didn’t know in your own mind – you’d  hadn’t resolved in your own mind  – the possibility that she was lying ?

Here is another example of telling your story in cross examination and making sure your point is clearly understood:

Q. All right, now, you say that she was upset with me as a defense attorney. Isn’t that consistent with her also being afraid that this so-called big-name attorney might discover and proof fax that which showed that she had shot her own husband?

A. That is a possibility yes.

Q. You can’t sort that out can you

A. No I can’t

Q. And isn’t it true that her being upset may have been the result her of her having actually have you question her about that?

A. That is also a possibility.

While prosecutor  frequently objected, Spence, as is his practice, did not object to the prosecutor’s cross of this witness except once. Here’s how he handled it:

(prosecutor question )  What was the frame of – what was the emotional state of Stapleton and Marquis when they asked you to do this?

Mr. Spence :  you know, I haven’t objected here just because I’m trying to be a nice guy.  do you want me to stand when I object, Your Honor?

The court: yes

Mr. Spence: when I think  if he is going to testify to the concerns or agitation of Mr. Stapleton or Mr. Marquis as my so-called encroachment , there should be more than  his conclusion in that regard ; that we should have some foundation.

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PRELIMINARY OUTLINE FOR ARGUMENT

I am not sure how much help, if any, my rough notes for  argument in a brain injury case where the defense admitted liability would be to you, but I thought it might illustrate one way to frame the basics for the liability argument. Here it is for whatever use it might be on notes for argument.

OUTLINE 

A.USE AS ILLUSTRATIONS:

  1. JURY VERDICT FORM
  2. NON ISSUE LIST 
  3. JURY INSTRUCTIONS 

(1)        ISSUES IN CASE  (Inst No._____)

(2)        CONCEEDED FAULT (Inst No._____)

(3)        BOTH DOCTOR & CLINIC LIABLE

(3)        BURDEN OF PROOF (Inst No._____ & No. _____)

(4)        PRE EXISTING CONDITIONS (Inst No._____)

(5)        DAMAGE ELEMENTS  (Inst No._____)

(6)        PRESENT VALUE  (Inst No._____) Why we use economist

(7)        LIFE EXPECTANCY  (Inst No._____)

(8)        SAME TEN DON’T HAVE TO AGREE  (Inst No._____)

B. WITNESSES

(1) SEE WITNESS LIST

(2) SEE TESTIMONY SUMMARY

(3) INJURY LIST 

C. WHY ARE WE HERE? NOW YOU KNOW WHY BUT:   

(1)        NOT A GAME –  

C. OPENING STATEMENT: FALSE CLAIMS & NON ISSUES

Defendant from jury selection wanted sympathy and credit for admitting liability.  Then do everything possible to avoid being held accountable for the admitted negligence to an innocent patient. 

(b)       DEFS EXPERTS NOT CALLED WHO AGREE WITH OUR DOCTORS AND EXPERTS & INSTEAD TRY TO DISCREDIT  

They rely upon a hired gun who they can count on to say what they want to hear instead of doctors who disagree with him and agree with ours. 

(c)        ACCOUNTABILITY GAMES – Video still photos showing her smiling out of context. Using parts of video of husband back in May  instead of cross examining him when he was here on the stand 

D. SEE DEFENSE PROPOSALS 

E. SEE POSTER: DAMAGE TOTALS FILL IT IN . COVER:

(1)        HARM – MONEY – JUSTICE DIAGRAM        

(2)        QUALITY OF LIFE vs FUNCTION@ AT MINIMUM LEVELS

(3)        SUFFERING

(4)        POINTS 

(a)        CHAIN- WEAKEST LINK

(b)  APPEARANCES DECEVING (like dropped watch)

(b)       SCAR ON BRAIN-MIND – SOUL

NOTE  FOLLOWING

’ POSTER: LIST OF INJURIES

’ POSTER: ECONOMIST

’ POSTER: PLF & DEF DAMAGES

’ POSTER: CALENDAR POSTER

’ POSTER:

MRI

’ BRAIN WITH OVERLAY

’ BRAIN WITH FUNCTION

’ BRAIN MODEL

’ BRAIN MODEL WITH HOLE

 

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