THE CHALLENGE OF JURY SELECTION
The subject of jury selection is particularly relevant now because of discussions in Washington state about eliminating preemptory excuses of jurors and because many lawyers generally find it to be a difficult art to master. The discussions in this state about elimination stem from our State Supreme Court who ask whether preemptory excuses should be simply eliminated. The argument for doing so is based primarily upon whether there is discrimination against minorities in the process of jury selection through this excuse process even though there are procedures to prevent this from happening. In my view it would be an injustice to eliminate this right on that basis because I feel the cost greatly outweighs weight of the assumed problem. If the system of challenge for cause was actually fair and effective it would not be as serious to do so, but the fact is that challenges for cause are for the most part unfair and not effective. Judges are reluctant to grant challenges because of concerns over the size of the remaining jury pool resulting in a possible delay of trial and a mistaken assumption that a verbal promise by a juror to set aside obvious bias can be relied upon. The truth is that most judges generally are not fully informed regarding the abundant research about human nature, decision-making and bias. Instead, they rely upon the idea that people can control attitudes and bias by will power. The research clearly establishes that this is wishful thinking. Human beings are not able to consciously control attitudes and motivations which are largely subconscious in nature.
In an excellent article by Susan MacPherson in February 2014 with the title “why do we ask jurors to promise that They will do the Impossible?” this subject was discussed. She points out that the traditional question put to jurors who have been honest enough to disclose a potential bias is this: “Would you be able to set aside that experience (attitude or belief) and decide this case only on the evidence you hear in the court room?” or another variation is: “Are you willing to follow the law as I give it in spite of your attitude?” These are the traditional “rehabilitation” questions judges are quick to ask in order to avoid granting a challenge for cause. The great majority of jurors are quick to agree that they have that ability to set aside bias, follow the law and can be fair in spite of the stated experience, relationship, bias, belief or experience even though it is an utter impossibility no matter how well intentioned they might be. Yet, judges generally are quick to accept the assurances in spite of the fact that such promises have been proven by research to be impossible even if the juror were willing to try.
As the author points out:
“Decades of social science research debunked the assumption underlying the “set aside” question. More recent neuroscience research dramatically illustrates how, outside the stimuli trigger, immediate reactions in the brain and other further proof that a request to “set aside” a relevant experience, attitude or belief is asking jurors to do the impossible. Jurors simply cannot flip a switch and shut off the influence of their own life experience or well-established attitude and beliefs.”
As important, the author points out that the traditional approach to attempt to rehabilitate the juror is also contrary to accepted knowledge about human behavior. She observes that we should stop adding to the burden of a juror by asking them to take on an impossible task with concepts like “set aside” and “rehabilitation”.
As to the challenge of jury selection, Dr.Amy Singer is a trial consultant in Florida I know and have used as a consultant. She wrote an article “Are you De-selecting the Wrong Jurors?” which I agree with totally. She notes that for years attorneys have focused upon juror demographics and used closed ended questions to figure out who they did not want on their jury. She correctly observes, however, that demographics are the least reliable basis of making such decisions. She notes that there are numerous studies which show that demographics have no correlation with jury behavior. As a result every jury voir dire should go beyond demographics and explore such things as value beliefs.
She notes that you should ask value belief questions and questions about the problem areas of the case in order to know who you might want to be excused from the jury. She also argues that it is important to identify how jurors relate to the problems and issues of your case. That involves life experiences and personality traits. Leaders who have had similar life experiences are likely to apply them and share their experiences with others in the jury room as “experts.” Dr. Singer points out that there are people on the jury who have hidden agendas concerning the outcome of the case as having a personal impact on themselves or with strong feelings about the nature of the case. There are ways in which to explore the existence of such jurors but one should the aware of these stealth jurors. She also points out that with limited time for juror questioning every question should count and should encourage participation by as many people as possible. Open ended questions along with giving jurors a chance to elaborate on their answers indicates that you feel their opinion matters to you. She encourages keeping the conversation going even when you hear an answer you don’t like.
These are some obvious observations about a complex exercise, but a good refresher on fundamentals to keep in mind. We are all in need of learning when it comes to jury selection procedures.