Human nature is an amazing thing, and sometimes we blind ourselves to our true abilities. If there is one thing we will always do, it is protect our self-esteem. We all want to look good in front others. Almost everyone feels that he or she is a good, reasonable person. We want to see ourselves that way, and we desperately want others to see us that way. We regularly see this in every jury selection. Here, members of the community gather in a formal and unfamiliar environment. They are asked whether they can be fair and impartial in order to meet their civic duties. These questions guide and lead members of the venire to say “yes.” Once again, we want to seem fair and impartial, especially in front of an authority figure (the judge) and a room full of individuals we don’t know. Some prospective jurors will respond “yes,” even though we know they can’t be fair under any circumstance in our case. This is the equivalent of one of those early contestants on American Idol bragging about her singing abilities, only to croak out a horrible rendition of a Whitney Houston song.
I’ve seen many, many instances. One recent instance that stands out is a product liability case where a young man was gravely injured. His injuries were so severe that one could not help but feel for him. Because this happened in a relatively small town, the judge did not automatically excuse members of the venire who knew the plaintiff or his family. One eager individual in the jury pool, whom we will call Sarah, walked in and openly acknowledged the plaintiff and his mother. Sarah greeted them with a “hello” as she walked into the courtroom. During questioning by plaintiff’s attorney, Sarah downplayed any involvement with the family and was adamant that she could be fair because “she did not know both sides yet.” She stressed that she would be “open” until she heard all of the “facts.” She said she had not yet made up her mind. Sound familiar?
Now, it was our turn to speak with Sarah. We had very few peremptory strikes left, so we wanted to preserve them as best as we could. Had we just moved into questioning about her ability to be fair and impartial, we would have gotten nowhere. Instead, we opened her up. I told my client just to get her to talk. Ask her broad questions about how she knows the plaintiff’s family. When does she socialize with them? What has she discussed with them about the case? My client interviewed her beautifully, in a manner that I call “talk show style.” It turned out that Sarah was good friends with the plaintiff’s mother. Sarah had even been at the hospital on the day of the injury. She had spoken at length with the plaintiff’s family about the case, and she socialized often with the family. She ended her questioning by emphasizing she could be completely fair to the defense. Sarah wanted on the jury, badly.
Was this a case of no insight, of someone just wanting to be viewed as a fair and reasonable person, or did she want to be on the jury to take care of the plaintiff? In the end, it really didn’t matter. Everyone in the courtroom saw what we see at home when we watch an American Idol contestant painfully butcher a song. Sarah was clearly wrong about her ability to be fair and impartial, and everyone in that courtroom knew it. Sarah was dismissed for cause.
Sometimes jurors may have a secondary gain to serve as a juror, but more often than that, sometimes they just can’t really see that they are not a good fit for a particular case. Rather than closing these prospective jurors up with close-ended questions like, “can you be fair,” open them up with open-ended questions. Get them talking. Think “Oprah,” by asking questions in a talk show format that make the prospective juror talk. Start broadly, and then get more specific. This way, whether that individual sees it or not, his inability to be fair will be crystal clear when you move for cause.
Just like American Idol, sometimes song choice is key. Just because a juror can’t be fair in one case does not mean she couldn’t be a fair and impartial juror in another case.
About the authors: Dr. Edelman earned a Ph.D. in social psychology from the University of Nevada, Reno and a LL.M. in International Law from the University of Kent in the United Kingdom. He began working as a trial consultant in 1998. Prior to co-founding Trial Innovations he was a Senior Trial Consultant at the Jury Research Institute. Over the last 13 years, he has worked on a number of high profile civil and criminal cases across the country and has also testified as an expert witness. Dr. Edelman has served as a presenter at national and international conferences and has published a book on the impact of race and empathy on sentencing in capital cases and articles on the influence of graphic images on perceptions of liability and damages.
Dr. David Cannon is co-founder of Trial Innovations and is based in the Los Angeles area. Dr. Cannon has been the lead trial consultant in cases across the country, ranging from insurance defense and corporate litigation, to capital cases and white collar crime. Dr. Cannon began consulting and conducting research on the consulting field in 1998. He has authored articles on voir dire and jury selection in bar journals across the country. He has also conducted research on attorney voir dire style and its effect on jury verdicts.
If you need further information please view Dr. Cannon and Dr. Edelmans CLE courses on the AttorneyCredits.com website: