THE CHALLENGE OF JURY SELECTION
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.