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:
- Answering in an unduly precise and restrictive manner
- Answers inconsistent with appearance, nonverbal characteristics or other answers
- 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