Are you giving your jurors enough time to think?

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.

Why You Can’t Poison a Jury Panel

poisonWhen I speak to law school students about how to successfully try cases, they usually have lots of questions.  One of the most common questions I’m asked is, “What should you do when a juror gives you a bad answer?”

Usually, I’ll pause for a moment before replying, because the question perplexes me.  Typically, my response is something along the lines of, “I don’t know what you mean — there’s no such thing as a ‘bad answer’ during jury selection.”

The students always seem a bit surprised at my answer.  “What do you mean there’s no such thing as a ‘bad answer’ during jury selection?  What about when a potential juror says something that poisons the whole panel?  How do you handle it?”

“I never have to ‘handle it,'” I’ll reply, “because it’s almost impossible to poison a jury panel.”

From the looks on their faces, you can tell that they think I’m completely out of my mind, so I have to explain my philosophy about jury selection.  In a nutshell, here’s what I say:

I have a different view of jury selection from many other lawyers.  I believe that it’s almost impossible to poison a jury panel.  It doesn’t matter what a potential juror says — I think that every answer is a good answer.

Let me explain…

Jurors have spent their entire lives developing their beliefs, their life experiences, and their worldviews.  It’s the height of arrogance (or stupidity) for us to think that we can change those views or convince them to ignore an entire lifetime of experiences during the pitiful amount of time we have to conduct jury selection.

Don’t believe me?  Let’s use your beliefs, life experiences, and worldviews about police enforcement officers as an example.  At this point in your life, you’ve established some fixed beliefs and views about police officers.  You may believe they’re inherently good people, you may think they’re inherently dishonest, or your beliefs may fall somewhere in between the two ends of the spectrum.  For sake of argument, let’s assume that you believe police officers are 100% honest and would never do anything dishonest or improper.  Now let’s drop you into the jury pool for a criminal trial where the credibility of police officers is central to the case, and let you listen as the prosecutor begins questioning the man seated next to you:

Prosecutor: “Mr. Wallace, do you believe that police officers are automatically more credible or less credible than any other witnesses?”

Mr. Wallace: “They’re definitely less credible.  I don’t trust cops.  They’ll all lie, cheat, or steal to get what they want.  I remember this one time back in band camp when I was stopped by a cop for no good reason at all.  When I dared to question his authority, he punched me in the stomach, tasered me, shot me in the leg, and then sprinkled crack cocaine all over my unconscious body and inside my car.  I was framed with false evidence, and went to prison for something I didn’t do.  I spent two years in prison before I was released.”

That seems to be a pretty terrible response for the prosecutor, doesn’t it?  Many lawyers would be terrified of eliciting a negative statement like that, because they think it “poisons” the entire jury panel.  They’re afraid that the other jurors will start thinking, “Wow, that’s awful!  Maybe police officers are dishonest, and we shouldn’t trust any of them…”

But the truth of the matter is, this juror’s comments won’t change any of the other jurors’ beliefs about police officers.  If a juror already believes that police officers are dishonest, this juror’s statement simply reinforces their view of the world.  Like we said before, let’s assume that you believe all police officers are 100% honest and would never do anything dishonest or improper.  If you strongly held that belief, would this juror’s comments suddenly make you believe that all police officers are dishonest?  No, you’d probably think, “This guy can’t be telling the entire truth…  There’s something else to the story.  Even if what he’s saying is true, that’s just an isolated incident with a rogue police officer — it doesn’t mean that the police officers in this case are dishonest.”

If your jurors have any convictions at all, a single isolated comment like that won’t change their beliefs, life experiences, or world views.  The only time a jury panel can be “poisoned” is when a juror has specific knowledge about the facts of your case.  For example, if a juror said, “Your star witness is Bill Smith?  I can’t trust that guy.  He’s a liar, a cheat, and a thief.  He steals money from orphans, spits on the flag, and clubs baby seals for fun,” a statement like that can poison your jury panel, because the jurors don’t have any pre-established beliefs about Bill Smith.  They’ve never met him before, so this statement will form their first impression about him and will color everything else they learn about him.  (Experiences like that are few and far between, and easily handled by asking the witness to approach the bench before divulging his personal knowledge about the facts of the case.)

When jurors talk about their beliefs, their life experiences, or their worldviews, it’s impossible for them to poison the panel.  No matter what they say, regardless of how extreme or negative it may be, you should be thankful for their response.

“Wait a minute,” you’re thinking, “I should be thankful?  A juror goes out of his way to attack my case and I should be thankful?!? You’re nuts!”

Yes, regardless of how negative their comments are, you should be thankful for their honest response.  Why?  Because this juror has a heartfelt belief that is harmful to your case.  Nothing you’re going to say or do during jury selection will change their beliefs, so wouldn’t you rather know about that poisonous belief now, before they take it with them back into the jury deliberation room to scuttle your case?  By exposing the belief now, during jury selection, you get the opportunity to intelligently exercise your peremptory strikes or ask the judge to strike the juror for cause.  More importantly, you also get the opportunity to use this juror’s views to shine a light on the rest of your panel and discover who shares similar beliefs.

The next time you’re picking a jury, don’t be afraid of what jurors might say and ask about the issues that scare you the most.  After all, what’s the worst that could happen?  They might stand up and say, “I hate your case!  I hate your client!  And I hate you!”

Your perfect response?  “Great!  Who else feels that  way?”

It’s better to discover those dangerous beliefs before they harm your case.  Regardless of what a juror says, always remember: There’s no such thing as a bad answer during jury selection.

Don’t Let Jurors Lie to You During Jury Selection

How honest are your potential jurors?  I don’t know about you, but lately, I’ve seen a rash of lying jurors.  And the sad part is, there doesn’t seem to be any guaranteed way to catch them.  In a recent two week span, I selected juries for five different cases.  And in almost every single case, at least one juror lied to me, my opponent, or the court.

In criminal cases, one of the issues I almost always inquire about is whether any of the jurors have ever been charged with a crime.   I explain that it doesn’t matter whether it was a misdemeanor or a felony, and it doesn’t matter whether it was dismissed or whether they went to prison.  Usually, I’ll ask a question like, “Have you, or someone close to you, ever been arrested or charged with a crime?”  Then I’ll ask for a show of hands to see who falls into that category.  Probably every criminal prosecutor and defense attorney asks something similar.  They understand how important it is to know whether or not any of the potential jurors have ever been charged with a crime. 

In the five cases I recently tried, every juror on every panel was asked whether they had ever been charged with a crime.

But here’s the interesting twist: I wasn’t trying to discover whether or not they’d ever been charged with a crime — I wanted to determine who would be honest about it.  I already knew what their answers should be.  In our jurisdiction, we have access to a statewide criminal history program, and run a criminal history check on every potential juror.  In addition, I have a computer in the courtroom, and can pull up more detailed information from the clerk’s office or the case management system. 

Every juror on every panel was asked whether they had ever been charged with a crime, and in almost every single case, at least one of them lied.

After we completed questioning of the entire panel, we asked the judge to bring some of the jurors back into the courtroom for individual questioning.  Almost without fail, once we confronted them about their lie, they would admit the truth.  We heard a variety of reasons why they hadn’t been honest:

One said he’d “forgotten.”  “Forgotten?!?”  This guy wasn’t just given a ticket or a Notice to Appear — he’d spent the night in jail.  Quick, do me a favor and take this pop quiz: How many times have you ever been handcuffed, arrested, and transported to the county jail?  Is that something you “forget?”  (Especially if it only happened 4 or 5 years ago…)

I asked another, “Why didn’t you tell us about the time two years ago when you were sentenced to probation after you got caught acting as a lookout for a burglary?”  Confronted with the details, he shifted uncomfortably in his chair, then said he thought it didn’t count, because he hadn’t been adjudicated.

There were a few other notable comments, but the most memorable was the guy who’d been arrested, convicted of a crime of violence, and sentenced to a lengthy jail sentence.  His reason for not telling us?  He just didn’t want to.  If I hadn’t had the details of his arrest and conviction in front of me, we never would have learned about his prior arrest.

Unfortunately, these lies may not be uncovered until after they’ve affected your verdict.  For example, earlier this year, a $28,000,000 plaintiff’s verdict was thrown out and a new trial ordered because three jurors lied during jury selection.  The defense attorney had asked whether anyone had ever been involved in a lawsuit.  Two of the jurors didn’t raise their hands at all (one had been sued twice, the other three times), and the third admitted she’d filed a lawsuit, but didn’t mention the other nine times that she’d been sued.

We don’t want to believe it, but some potential jurors will lie to us.  These lies affect the integrity of the jury system and the validity of your verdict.  I wish I could give you a secret formula for catching every lie and keeping those potential jurors off of your jury, but there’s no perfect solution.  The best I can recommend is that you make a clear record so that you can ask the court for help if you do uncover a lie.

If you ask, “Has anyone ever been arrested for any crime?” and none of the jurors raise their hands, make sure you create a record.  Say something like, “None of the potential jurors raised their hands”  or, “Let the record reflect that no one has raised their hand.”  Then, if you discover that one of the jurors has a criminal record, the court will have something to act upon.  Without that statement, your appellate record will be ambiguous as to whether or not the any jurors responded to your question.

You won’t be able to catch every lie, and not every lie you catch may matter. But if you do catch someone in a lie and you think it affected your verdict, make sure you have a record that lets the court help you out.