When 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.