You know that jury selection can be the most important part of your trial, because it’s your only chance to uncover the views, attitudes, or life experiences that potential jurors will bring into the deliberation room. If you don’t uncover their negative views and beliefs during jury selection, you’ll be stuck with a juror who is biased or prejudiced against your client, and your client won’t get a fair trial.
How will you uncover those biases and prejudices? With the only weapon you have in your arsenal: a well-phrased question.
The power of a well-phrased question can be amazing. When you ask well-phrased questions, you can learn intimate details about potential jurors. As a result of well-phrased questions, I’ve watched jurors publicly talk about race and race relations with a candor you’d only expect to hear behind closed doors, heard jurors admit to biases that they were previously unaware they’d been carrying, and even witnessed a woman disclose that she had been a victim of abuse (something that she’d never told anyone, not even her own family!) Without well-phrased questions, most jury selections would be a complete waste of time.
But asking the question is only half the battle.
Not long ago, I was watching a criminal case where the defendant was accused of robbing a man at gunpoint. The defense attorney planned to argue that the defendant was a victim of mistaken identity, so during jury selection he asked the potential jurors, “Have any of you ever been wrongfully accused of something?”
As far as jury selection questions go, that’s not too bad a question, is it?
It’s an effective question because, in addition to gathering information about the potential jurors, it works on two additional levels. First, it promotes the defense’s theme of the case: “An innocent man, wrongfully accused.” Second, it gets the jurors to think of a time when they’ve been wrongfully accused of something, which helps them empathize with the defendant’s plight.
But, like we discussed earlier, effective jury selection requires more than simply asking good questions. Effective jury selection also requires the jurors to answer the questions. In this case, even though the defense lawyer had asked a good question, he didn’t learn anything about the jurors, because no one answered his question.
Why didn’t they answer?
Because he didn’t give them enough time to think. Instead, here’s what he did: He asked the question of the entire panel, and then looked to see if anyone would speak up. When no one responded after a few seconds, he dropped the issue and moved on to another topic. But a few seconds isn’t enough time for jurors to respond to thought provoking questions. If you want jurors to answer your questions, you need to let them think. The more thought-provoking your question, the longer it will take jurors to respond.
Here’s an example. Take this pop quiz, making a note of how long it takes you to think of each answer:
Question #1. Who were the three most influential people in your life?
Question #2. Name three characters on The Simpsons.
You answered the second question much faster, didn’t you? The reason why it took you longer to answer the first question isn’t because you didn’t know who had influenced you. It took you longer to answer because you were forced to quickly think back over your entire life history, pick out all of the people who had influenced your life, and then rank the top three. The second question merely asked for you to recall information, but the first question was thought provoking.
It takes longer to answer thought-provoking questions. When you ask jurors thought-provoking questions like, “Have you ever been wrongfully accused of anything,” don’t take their silence as a “No.” They want to answer your question, but they’re busy sorting through their entire life histories before they can respond. Here’s what’s going through their heads:
“Let’s see, have I ever been accused of anything I didn’t do… Um, let me start by thinking about work. Has my boss ever accused me of something like that? No… Co-workers? No… What about my previous job? Nah, nothing like that there. My summer internship? No, they never accused me of anything. Well, wait a second… no, nothing like that. How about my time in the military? No, never accused of anything there… College? Ummmmm…. No, nothing. Oh, wait! First year of college, I had a roommate accuse me of drinking all of his soda and not replacing it. I forgot about that… But I was a Dr Pepper drinker, and he only had Coca-Cola, and I never touched his Cokes, and then we figured out it was our third roommate’s girlfriend who had stopped by and drank all the Cokes, so yeah, I guess I have been accused of something I didn’t do…”
Unfortunately, when jurors greet our questions with silence, we feel the urge to quickly advance to another topic, hopefully one that will generate a better response. That’s probably what this defense attorney felt. When he saw that the jurors weren’t responding (aloud) to his question, he jumped to his next topic. But if he’d simply given the juror more time to answer, he would have received a response, and would have been able to learn more about the juror. Instead, reviewing that stream-of-consciousness paragraph above, I think he probably switched to the next topic somewhere around the time the juror would have been thinking about “co-workers” or the “summer internship.”
The next time that you ask a thought-provoking question, make sure you give the jurors enough time to answer. Here’s a seven step technique you can use to ensure you’ve given them enough time to think:
1. Ask the question of the entire panel (and tell them how they should respond): “By show of hands, has anyone here ever been wrongfully accused of something?”
2. Show them how to respond: While asking the question, raise your own hand in the air. (Telling them how to respond and then showing them how to respond will encourage greater responses.)
3. Pause. Don’t rush it. Mentally count to 10 or so before you even think about saying anything else or moving to another topic.
4. Look ’em in the eyes. While you’re pausing, make eye contact with several jurors and use the power of your eye contact to encourage responses. Keep an eye out for the ones who look like they’d like to respond, but haven’t made up their minds yet.
5. Nobody volunteered? Pick on someone. Actually, pick about 3-4 people, from different parts of the room, and ask them directly: “Mrs. Jones, have you ever been wrongfully accused of something?” By asking them directly, sometimes you’ll prompt a better response. (A good place to start is with the people who looked like they wanted to respond, but didn’t raise their hand.)
6. Ask the entire panel again. Even if no one responds to your individual questions, it’s not a waste of time, because you’re giving the other jurors time to finish thinking their way through your question. Now that they’ve had enough time to finish thinking, ask the entire panel once again, perhaps adding a bit of a challenge to your question: “Really? No one here has ever been wrongfully accused of anything?”
7. Pause (again). Look ’em in the eyes (again). Hopefully, this will prompt any hold-outs into answering the question. If not, consider rephrasing the question, or moving on to another topic. At least you’ll know that you didn’t cut off anyone’s thought process and prevent them from answering.
Getting jurors to talk is not always an easy process, but if you’ll invest the time before trial developing well-phrased questions and then give the jurors sufficient time to answer your questions during jury selection, you’ll start to learn more about your jurors than you’ve ever known before.