Selecting a jury is not an exact science. Success in jury selection relies on an attorney’s interpersonal skills: the ability to stand in front of a group of people and make them like you, trust you, and share personal information with you. So, it’s important to acknowledge the fact that jury selection, especially within a 15-minute time limit, is not science, and realize that a social nature provides a head start on connecting with jurors. There are woefully few absolutes when it comes to selecting juries, but a few things can maximize an attorney’s time and make the selection process slightly less random.
Jury selection, by its nature, forces attorneys to assume things about jurors based on incomplete information. Past experience and gut instincts are no substitute for actually visiting with members of the panel and obtaining information on which to base peremptory challenges.
The Basics of Voir Dire
The process of selecting a jury is known as voir dire. During voir dire, both sides will begin by posing questions to a broad panel of people regarding their backgrounds, beliefs, and biases. The jury will be chosen from this larger panel.
Each side has an unlimited number of challenges for cause. Usually, a challenge for cause is made when one side believes that a prospective juror has a bias against them. For example, a prosecutor in a capital murder trial might challenge a prospective juror who says that she objects to the death penalty because of her religious beliefs. The defense attorney might challenge a prospective juror who says that he believes that any defendant who does not testify is guilty.
Each side may make a limited number of peremptory challenges. A peremptory challenge does not have to be explained. That is, each side can simply strike a certain number of prospective jurors from consideration. The number of peremptory challenges varies according to the type of trial and the number of defendants.
Use themes in jury selection along with effective questioning to determine biases and identify whom to strike. Use juror questionnaires whenever possible. (File the appropriate motion or written request in order to use a questionnaire.) It is important to make a record. Today, because of the access to news, cultural commentary, and opinions – the composition of a venire panel can vary widely from case to case. But, general similarities do remain.
Today’s Venire Panel
Today’s jury panel is, overall, more educated and has access to more information than ever before. With remote education programs at their all-time high (thanks in part to COVID-19), the average juror has some level of college education. Jurors today learn by watching and doing, not merely reading or listening to lectures. It has been referred to as the “Grab and Go Culture,” which means they expect you to get to the point quickly. They have likely watched media coverage of trials, most of which are criminal trials. Most jurors want to do a good job, but they need guidance on how to do that in the immediate case. Many of them participate in social justice movements in their personal time. A lot of them have some business acumen, and the overwhelming majority have a strong political association that guides their points of view on issues like fair treatment and equal opportunity.
The “Fake News” Problem
The last several years, beginning with the COVID-19 pandemic, have likely had more influence on jurors than the decade before, including a direct impact on them personally, either through family or workplace events. Their trust in leadership and authority has been shaken. Many have a belief or perception of what is often referred to as “Fake News.” In addition to consuming media coverage of famous lawsuits, such as the Johnny Depp v. Amber Heard case or the Kyle Rittenhouse trial, jurors also hear about some of the record-shattering verdicts in civil cases. Thus, a juror’s recent experience, perception of an authority’s truthfulness, skepticism of news items, and exposure to notorious cases – influence and potentially skew their views.
Not Jury Selection but De-selection
The process of identifying a jury is often called “jury selection,” but it’s more accurately called “jury de-selection.” In this process, parties don’t choose jurors they want, but instead remove jurors who might pose a problem. This is an important distinction to have and will guide an attorney’s selection process.
De-selection starts by identifying life experiences that affect impartiality. The attorney will determine what biases are the most harmful to his or her case. A great way to achieve this is by talking less and listening to the jurors more. This is where the ability to connect with people is so important. An attorney must motivate jurors to care about the case on a personal level and persuade them to relate the case to their personal experiences.
Beware of Icebergs
It’s estimated that 90% of an iceberg’s volume is below the surface, while only 10% is visible above the surface. This is why the phrase “tip of the iceberg” is used. The same holds true for jurors. A wise attorney will dive down to look at attitudes, opinions, and life experiences that may lie below the surface. They will seek to learn why a particular individual holds a particular attitude, and will try not to just blindly rely on demographics.
Know the Court
A popular adage goes, “A Good Lawyer Knows the Law, but a Great Lawyer Knows the Judge.” Similarly, a strong attorney will get to know the judge and the practices of the court. Find out what the judge will allow, how much time is allotted for questioning, whether juror questionnaires are allowed, the form of questioning, the number of challenges, and the approach to jury shuffles.
Themes are Important
Moral themes place moral blame and appeal to common values. The attorney should not only develop a theme during jury selection, but also needs to inoculate their client’s case against the opponent’s theme.
Examples of moral themes in litigation:
- CARE vs. HARM—are you protecting us?
- FAIRNESS vs. CHEATING—are you just?
- LOYALTY vs. BETRAYAL—did you honor the agreement/policy/ practice?
- AUTHORITY vs. SUBVERSION—did you play by the rules?
- SANCTITY vs. DEGRADATION—do you have clean hands?
As stated above, jurors want to get it right but need guidance on how to get there. An attorney will explain — through questions — why their client should win as a matter of fairness and justice. For example, rather than saying “This case is about…” — which can keep the speaker distanced from the jury – a more conversational question like “Why are we here?” brings the jury into the discussion and the experience while encouraging them to consider the situation and the answers to “Why are we here?” Themes must be relatable and grab the jurors’ interest. A good way to start is to focus on subjects people have definite opinions on, that they don’t mind sharing, won’t self-censor, and that reveal true thoughts/feelings.
Prepare Early and Practice
As tension increases when the trial date nears, preparation is often pushed aside. However, it is critical that an attorney makes time to prepare for jury selection. Thorough preparation should mean the attorney will rely less on their notes and place all of their attention on the potential juror.
An effective voir dire has several characteristics:
- Feels like a conversation
- Allows the questioner to look jurors in the eyes and show genuine interest
- Produces information about individual jurors
- Seeks to learn the WHAT and the WHY
- Is curious while cordial
- Reveals something personal from the attorney
- Makes it acceptable to disagree or have a different opinion and
- Talks about biases and why everyone has them
This is rarely, if ever, an issue in a typical civil trial. Nonetheless, at attorney should prepare for a Batson challenge. A Batson Challenge is an objection to the validity of preemptory strikes based on the argument opposing counsel uses to exclude jurors because of race or sex (or other “cognizable” groups).
Have a neutral explanation theory ready and documented, such as:
- Marital status
- Failure to pay attention during voir dire
- Familiarity with the parties
- Arrest or incarceration of a family member
- Employment such as working as a teacher or social worker
- A juror’s clothing and attire, and
- Hostility towards the court or lawyers during voir dire
Tools to Gain More Insight
Prior to the trial, the lead attorney should assign each team member a task, like researching social media, recording answers, taking notes, and more. A plan for administration can reduce/eliminate extra work for court personnel.
When possible, an attorney can and should request the use of a supplemental juror questionnaire. Sample questions for a supplemental juror questionnaire:
- What previous jobs have you held?
- Ever been terminated from a job?
- Ever believed that you were being discriminated against?
- Ever filed a lawsuit because of something that happened to you or a family member?
- Have you or a family member ever been a Plaintiff, Defendant, or witness in a lawsuit?
- Ever had a serious business dispute with a partner, customer, or client?
- From where do you obtain news about current events?
- What programs, podcasts, or streaming services are frequently watched?
- Do you consider yourself a leader, follower, or team player?
If time permits, use social media to research a juror further. Social media has its own benefits, such as revealing far more detailed information and strong opinions of the juror. However, be aware that such research will leave a footprint. For instance, will the search be identified to the juror (via platform or privacy settings)? Also, the local jurisdiction may include limitations on such searches. For example, see the ABA Opinion 466 (April 2014)1 regarding internet research of potential jurors. Some considerations for using social media are:
- What to look for?
- Which staff member oversees this research?
- Confirmation of juror card info (job/education/marital status)
- Photos –any big changes recently, significant events?
- What proves that this social media belongs to this juror?
- Whether no evidence of social media is important to the case
- American Bar Association, Standing committee on Ethics and Professional Responsibility, Formal Opinion 466 April 24, 2014, Lawyer Reviewing Jurors’ Internet presence; see https://www.americanbar.org/groups/professional_responsibility/publications/