WHAT TO DO ABOUT BIAS AGAINST YOUR CASE ON VOIR DIRE

What do you do when you encounter a jury pool where you get a lot of negative responses to your case? Do you try to establish grounds for a challenge for cause and try to get rid of them?

If that is your approach you will find in most cases you are fighting a losing battle. When you try to correct the threat of  negative responses with challenges for cause it is like trying to hold back the tide. In many cases you have a judge lacking in trial experience who thinks a juror commitment to set aside bias works and will deny the challenge.

In my view, the better approach is to go with the flow and gain credibility by acknowledging the viewpoint and an asking what the person thinks the solution should be in light of the their views plus trying to suggest this case is an exception to their bias. The responses to juror’s expressing bias should be, in general, something like “Sure, I understand what you are saying. You’d have to fix all the intersections like this in the city, right? I mean that could be a huge burden. So what do you think we should do about the problem or do we just ignore it or what? What if it turns out the city knew about this problem and had known for some time? Should that make a difference or not?”

 You don’t run from the answers nor immediately move into challenge for cause mode in the face of bias. You deal with it when it happens because there are too many other jurors who feel the same way. Instead you develop the discussion from agreement & acceptance to what do we do about it then and are there exceptions and this is one of them, You can’t possibly use challenges to get rid of biased jurors. There are too many and too many who will be silent.

At least that’s my approach.

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