Imagine that you’re being audited by the Internal Revenue Service and need to hire an accountant. Since this is such an important decision, you’re going to do a diligent search for the most qualified accountant in your area. You’ll probably pick up the Yellow Pages, look for the accountant with the biggest ad, preferably a full-color advertisement on the back of the book, and immediately schedule your initial consultation. (What? That’s not how you hire someone to perform a critical professional service?!? You’d base your decision on word-of-mouth reputation and the recommendations of your colleagues? Huh… That’s weird.) Walking into his office, you drop two boxes of documents and receipts onto his desk and say, “I’m trusting you with the financial security of my family. I need you to make sure that this audit goes smoothly and keep me out of trouble. Can you do it?”
If he paused for a moment before telling you, “No problem… I think I’m up to the task,” how would you react? Would you leave the boxes on his desk and say, “Thanks! Let me know how the audit goes?” Or would you grab the boxes and run?
Now imagine for a moment that you’re going to the hospital for a minor surgical operation. Moments before they’re about to begin the operation, you hear the doctor tell the nurse, “I’m pretty sure I can do this!”
How would you react? Would you relax, breath deeply, and wait for the surgery to begin? “After all,” you’d think, “it’s only minor surgery — what’s the worst that could happen?”
Probably not, right? Chances are you’d probably jump up from the operating table, rip the IV from your arm, and bolt out of the room.
You’d never accept equivocal answers from the people entrusted with safeguarding your property or your life. Even though it’s only money and only minor surgery, you’d immediately demand a different accountant and a different doctor, because your life is too important to risk on someone who’s “pretty sure” he can do the job.
The same thing is true in the courtroom.
During trial, jurors will be entrusted with safeguarding your client’s money or liberty. To do that, they’ll need to be fair, and they’ll need to follow the law. Yet how many times have you had a juror tell you, “I think I can follow the law?” or “I’m pretty sure I can be fair?”
Usually, these types of responses are just a juror’s honest (albeit conversationally casual) reaction to your questions. It doesn’t necesarily mean the juror won’t be fair, but it’s no guarantee that he will be fair, either. Under the law, these types of answers are considered “equivocal,” which means that either you or your opponent may now be able to strike him for cause by showing the judge that the juror’s equivocal answer raises a reasonable doubt about his ability to be fair or to follow the law.
Getting rid of a juror for cause allows you to use your peremptory strike against another witness, so in reality, a cause challenge is actually worth two strikes. That’s why equivocal answers can be dangerous. A single equivocal answer may give your opponent all the ammunition she needs to strike one of your favorable jurors for cause, saving her precious peremptory strikes to get rid of additional jurors who may be persuaded by your case.
What do you do when a potentially favorable juror gives you an equivocal answer?
Many lawyers try to shove an unequivocal answer down the juror’s throat by “rehabilitating” the jurors. (I’ve been guilty of this in the past). Here’s a typical scenario:
Lawyer: Ms. Jones, can you be fair in this case?
Juror: Um, I think I can.
Lawyer: Ms. Jones, in the courtroom, the law isn’t really set up to deal with “I think I can” type answers. We like to have more definite answers. Just imagine getting on a plane and the pilot says, “I think I can land this plane safely.” Obviously, you’d have some concerns about whether or not you should fly with him. You’d want a definite answer. Can you give me a more definite answer, Ms. Jones? Can you be fair in this case?
Juror: Yes, I can be fair.
The danger in this type of “rehabilitation” is that the court may still have a doubt about the juror’s ability to be fair. If the judge thinks that the witness’s “Yes” response was merely coerced by your questioning, the witness will still be stricken for cause.
Instead, you need to follow up and let the record reflect how the juror truly feels. One of the best ways to do this is by following up with an open-ended question asking the juror to elaborate on her answer. Here’s are two examples:
Sample 1:
Lawyer: Ms. Jones, can you be fair in this case?
Juror: Um, I think I can.
Lawyer: Ms. Jones, can you think of any reason why you couldn’t be fair in this case?
Juror: No, there’s no reason I wouldn’t be fair.
Sample 2:
Lawyer: Ms. Jones, can you be fair in this case?
Juror: Um, I think I can.
Lawyer: Ms. Jones, what concerns do you have about your ability to be fair in this case?
Juror: I can’t think of any reason why I wouldn’t be fair.
By asking the follow-up question, you can save this juror from being improperly stricken for cause, forcing your opponent to use one of her limited peremptory strikes. In the courtroom, you only get one chance to hear from the people who will ultimately decide your client’s fate. Hopefully this tip will help you make the most of it!
Resources:
Unless we know “your opponent” is a woman, the grammatically correct reference would be “:forcing your opponent to use one of HIS limited peremptory strikes.”