I. The Myth of Jury “Selection”
The truth is, you can’t really “select” a jury during voir dire. Why not? Because the notion of selection — meaningful selection, anyway — presupposes that you have good information, and the voir dire process doesn’t generally produce good information. Out of fear of being laughed at or thought stupid, jurors give answers that they think will be accepted as reasonable, even if they’re not necessarily true.
In the 1950’s, a researcher named Solomon Asch conducted a series of experiments meant to determine the extent to which people will conform with a group. The studies confirmed that individuals will go to great lengths not to stand out from a crowd, even if conforming requires them to act counter to what they know or believe. I have seen this many times in my practice. For example, I remember an occasion when, during polling, the first juror said the word “guilty” in response to the clerk’s question, “was this and is this now your verdict?” Clearly, the appropriate response to this question is either “yes,” or “no”; “guilty” makes no grammatical sense. Nonetheless, each one of the remaining eleven jurors gave the word “guilty” in response to the question simply because they didn’t want to distinguish themselves from the rest of the group – or possibly because they wanted to consign me and my client to a special level of hell for a couple of minutes.
Anyway, what is true is that most jurors come to the courthouse with fixed beliefs that are harmful to your client. Most jurors believe, for example, that your client is guilty – otherwise he wouldn’t have been charged. They also have complete faith in the trustworthiness of the police and the prosecution. If you can’t loosen these beliefs at least a little, you have no chance of winning your trial.
Thus, instead of wasting time during jury selection inquiring into a prospective juror’s child care arrangements, ask questions that will awaken the doubts and concerns that a fair American juror ought to have about the trial process. In other words, you have about five minutes to alert these people to the principles that protect their liberty.
[Remember, most jurors haven’t gone to law school. They haven’t thought about the rights that make America, America. They haven’t considered what makes a trial fair. They don’t know who Thomas Paine was, and they would be offended Ginsberg’s Howl. Their default setting is to trust the government. For a criminal defendant, that’s not a good default setting.]As a defense attorney, your job in jury selection is to get prospective jurors to change (or at least reassess) it everything they think they know about prosecutors/law/police, so that they’ll be receptive to your case. The first step to achieving this is to recognize that you, as a defense attorney, have no credibility. Not only do you represent thugs, you’re purely in it for the money.
No. The only person who is going to change the juror’s mind is the juror herself. But how do you do that? How do you get a juror to reexamine her beliefs such that she changes her own mind?
Enter Socrates.
Socrates challenged people to examine their core beliefs. He used open-ended questions to encourage dialogue. He guided, but did not dominate, the conversation. He was, foremost, an educator.
I try to approach jury selection as a gentle Socrates. I view it as an opportunity to educate, more than as an opportunity to “select.” Thus, I don’t ask questions like, “if you’re in a room with a group of other people and they want to do one thing, and you want to do something else, are you the sort of person that can stand up to them?” How many times does a situation like that actually arise in life? It’s like asking someone what they would do in a hostage situation, or if their brakes suddenly failed. They don’t know what they’ll do until the situation is upon them. For your purposes, by then it’s too late. So, forget about selecting them. Instead, educate them. Consider, for example, the following situation:
Q. Ms. Smith, earlier the judge asked you if you’d agree to abide by the presumption of innocence.
Juror Smith. Yes.
Q. And you said that you would abide by it?
Juror Smith: Yes.
Q. So, if you had to vote right now, not having heard any evidence, how would you vote? Guilty, or not guilty?
Juror Smith. Guilty.
[Sometimes they’ll say I don’t know, or I’d have to wait to hear all the evidence, which is slightly better than guilty, I suppose, though still completely wrong. (Mostly though, they say guilty.)]This happens because the juror hasn’t thought about what the presumption of innocence means. They’re just answering questions with the group. Get the juror to actually think about the presumption of innocence by engaging them in a Socratic dialogue. For example, you could ask: Ms. Smith, why do you think we have a presumption of innocence? Or: Ms. Smith, What might be the dangers of not having such a rule?
So, my biggest piece of advice is this: get them to think. Trust me, you’re much more likely to get information that will help you intelligently exercise your challenges by engaging jurors in them in a dialogue, than by delving into what exactly it is that they do for FGNH Financial.
II. Confronting Harmful Fixed Beliefs
At the outset of picking a jury, you must recognize the fixed beliefs that many jurors bring to court, and confront them, when appropriate. Let me make clear that I am not saying that all people harbor all of the beliefs that I’m about to address. In fact, I’m sure that a few remarkable people harbor none of them. However, I suspect that most prospective jurors bring at least one of these beliefs with them to court. Although it will not always make sense to address them directly during jury selection, in some cases, it might make sense. Either way, you do good service to your client if you at least keep these in mind during jury selection, and stay on alert for prospective jurors who you suspect will be unable to overcome them. I make this last point because, while I call these “fixed” beliefs, I do not mean to suggest that they are necessarily permanently fixed. By using the Socratic Method, you may be able to loosen some of these beliefs, and turn a previously unsympathetic juror into a receptive one.
Now for the beliefs. In your venire, you can assume that there are people who:
1. Are afraid of black people and, in particular, think that all young black men are violent.
2. Think that all Hispanic people are illegal.
3. Think that all illegal people are dishonest.
4. Think that all defense attorneys are dishonest.
5. Think that your client wouldn’t have been charged if he wasn’t guilty.
6. Think that your client would take the stand if he wasn’t guilty.
7. Worship the police.
8. Think that, if the prosecution wants it, it must be justice.
The first three of these are touchy and, as I said, you may not want to address them directly. However, you can bring them up in a relatively non-accusatory way by asking a question such as, Mr. Smith, what effect, if any, should James’ race have on your verdict? Of course, Mr. Smith will say none, but this at least alerts him and the other jurors that you are aware that this may be an issue in the case. Thus, the jurors may monitor each other during deliberations to make sure that the poison of racism doesn’t taint their discussion.
You can’t do anything about number four. Just don’t do anything to confirm that misconception.
Numbers five through eight can each be touched upon by discussing the Zehr Principles outlined below, and, unlike the other four, they should be touched upon. If you go into opening statement with any of your jurors still holding firm to these beliefs, you have very little chance of winning.
III. The Zehr Principles
In Illinois, trial courts are supposed to establish that prospective jurors accept the following principles. “that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him.” [These are known as the “Zehr Principles,” after People v. Zehr, 469 N.E.2d 1062, 1064 (1984).]
Although the court asks these questions of the venire, when individual jurors are called to be seated in the jury box, you should revisit these principles with them by engaging them in a dialogue. This is because, when asked as a group, no one will raise their hands to express disagreement, for fear of standing out. As a result, many people will say that they agree with them without having given them serious, or any, thought. Talking about the Zehr principles is an excellent way to get prospective jurors to become aware of, and, hopefully, reassess, fixed beliefs that they probably don’t even realize that they hold.
Finally, how much time do I spend discussing these? I would say that about 80% of my questioning is devoted to these principles. [Also, note that I do not discuss the principle concerning the defendant’s right not to testify if I know that my client is going to testify.] The remaining 20% is spent discussing the one big issue that is at the center of my case.
IV. The One Big Issue
If, in addition to the Zehr Principles, there is one other issue that looms large in my case, I voir dire on that as well.
For example, if it’s a DWI trial, I’ll ask jurors their opinions regarding alcohol. If it’s a self defense case, I’ll ask them whether they think physical violence is ever justified. If it’s an insanity defense, I’ll ask them if they know anyone with a mental illness, etc.
Question about those issues, but be mindful that the jurors are in an uncomfortable position already. Don’t embarrass them or give them a reason to resent you by pressing too hard or belaboring the point. If a juror says that her father was an alcoholic, don’t ask for details. Just establish whether she agrees that it would be wrong to punish your client for whatever her father may have done, and move on.
Also, try not to ask about more than your one main issue – whatever it is. If you think you have more than one main issue, look again. Pick the most important one.
The reason for this is that you don’t want to wear out your welcome. The jurors know that they still have a whole trial to go. They’re concerned about getting back to their jobs and their families. If they believe that you’re prolonging their service (if, in other words, your voir dire is too long), you’ll turn them off to you, and they won’t listen to you when the trial actually starts.