Judges typically do not like to grant cause challenges. This fact, coupled with the burden of uncovering juror bias, makes it increasingly difficult for attorneys to have jurors excused for cause. There are numerous techniques that attorneys can utilize to assist them with this endeavor.
Jurors who admit to bias usually will only do so if they are speaking with someone who appears to understand them. Bias is almost never admitted under conditions approximating cross examination. The key is to speak slowly with the juror and to use pauses. This demeanor is highly effective at getting jurors to confirm their prejudices.
As a corollary to observations about demeanor, it is also true that it is easier to get challenges granted for feelings of sympathy or compassion, rather than for feelings of anger or hostility.
Judges appear more understanding and less aggressive about rehabilitating a juror who feels sorry for an individual than for a juror who simply dislikes a particular individual or company. For example, instead of focusing on a juror’s generic bias toward large corporations, the attorney should focus on the jurors related feelings of sympathy for a worker who has been mistreated by management.
Some judges do a good job of informing jurors of the purpose of voir dire at the beginning of voir dire, while others do not. If all else fails, and no one has clarified the purpose of voir dire, attorneys must be prepared to instruct the panel. When doing so, it is most important to establish the following points with the jury panel:
Not every juror should sit on every case
We all have attitudes, opinions and life experiences we bring to this courtroom. It is important for the attorneys in this case to explore those attitudes and opinions to see if they might affect how you view the evidence and how you would think about this trial. After the jurors have an understanding of the purpose of voir dire, they will be more at ease to answer questions relevant to their attitudes. The answers to these attitude questions are vital in determining cause challenges.
A common problem in proposing cause challenges is that the attorneys do not establish grounds for excusing a panelist for cause. Judges may not be as eager to dismiss a juror if the juror’s bias is not clearly exposed. Establishing grounds may be done by referring back to either the questionnaire responses, if a questionnaire was used, or to what the prospective juror said during oral voir dire. For example, AYou said you didn’t trust big business. You also said corporations always put money before safety. Can you tell us a little more about your views?@ In this way the basis for the cause challenge is evident to everyone, even the potential juror.
Typically jurors do not like to admit that they cannot be fair. Attorneys should not inundate jurors with the notion of being fair. Prospective jurors are often offended by the suggestion that they might be anything but fair. Because potential jurors seldom admit they cannot be fair, the attorney needs to provide a socially acceptable way for jurors to talk about their biases. Generally, after the grounds for bias have been established, one strategy is to use some type of metaphor to probe further. Here are some examples:
- Given what you said before (or, what was on your questionnaire), would the defense start out with a bit of an edge
- Would the defense have a little steeper hill to climb in order to prove its case? (Use hand motions to show the steepness of the grade.)
- Would the plaintiffs be starting off a little bit behind the defendant?
- If this trial was a race, would we be starting out one step behind?
- If you were in my shoes, representing my client, would you want to have a person with your attitudes sitting as a juror?
- Do you tend to side with the underdog? Do you see the plaintiff as the underdog in this case?
Knowing when to stop is a valuable skill in developing a cause challenge. A problem may arise after cause has been established if counsel continues questioning. Occasionally, after an attorney goes back over the same territory, the juror says the wrong thing. This problem is most likely to occur when co-counsel does follow-up questioning. A brief discussion on this point among all co-counsel before oral voir dire (or a note to stop questioning a particular juror) will usually suffice to minimize the problem.
Uncovering juror biases that may be potentially damaging to a case is a critical aspect in developing cause challenges. The motivation and ability of attorneys to obtain cause challenges vary widely. However, attorneys who adopt specific strategies and techniques have a much better chance of compelling jurors to admit their biases and having their cause challenges granted.
Talking your way out of the Fairness Box
In general, you want to avoid using “fairness” language as much as possible when developing cause challenges because few jurors believe that they cannot be fair—but jurors’ self-assessments bear little relationship to reality. Sometimes, however, you cannot avoid grappling with the “fairness” language. The worst situation is when you feel you have adequately developed a juror for cause and the Judge intervenes, gives a long lecture about a juror’s duty under the law, asks “So, can you be fair?” and the juror replies, “Well, I can try. I’ll try to be fair.”
So how can you talk your way out of that fairness box? First of all, do not give up at that point and accept a Judge’s weak rehab efforts. It also helps to understand that there are two reasons jurors have a difficult time admitting to bias.
Fairness is a strong positive American value, and few of us, in a sacred, public civil space like the courtroom, are able to admit that we cannot be fair. We succumb to the pressures of our social environment and represent ourselves as conforming with general social values. So while you will occasionally see a juror say that he or she cannot be fair without much preamble or development by an attorney skilled at voir dire, it is a rare event.
Equally important, however, is that jurors are often affected by their biases in ways that remain outside of awareness. Few police officers believe that they are racially biased—but the statistics on both the race of drivers stopped by officers, and the number of vehicle searches conducted once a driver has been stopped, clearly demonstrate that officers are biased. Similarly, jurors may often be unaware of how their anger at corporations, belief that plaintiffs are all playing victim and failing to accept responsibility for themselves, or assumption that anyone arrested by the police is probably guilty actually affect the way that they receive evidence in a case.
Therefore, you must be the one to slowly take a juror down the path towards realizing and then admitting that s/he cannot be fair.
Here is a model voir dire as defense counsel in a medical malpractice case after a Judge has gotten a juror to say, “Well, I will try to be fair.” It’s your turn to question this juror one last time to try for a cause challenge. In real time, this exchange would take three to five minutes. Developing cause challenges does take time and patience.
Wait for the juror to say yes. Get the juror into a pattern of assenting to your statements and questions
“Mr. Jones, it’s me again! I’m sorry to be up here again, asking you questions, but it’s my duty to do so. I hope you understand that?”
“Yes, I do.”
Read back a juror’s negative answers from the questionnaire, both to get the juror to re-commit and emotionally reconnect to his negative answers and to get them clearly on the record.
“Now, let’s take a look at what you said on your questionnaire originally. You wrote that you believe you had a health problem that was misdiagnosed and you were in severe pain for 6 months or so before they figured out what was wrong, isn’t that correct?”
“Yes, that’s right. It was really painful. I had to miss a lot of work.”
Always follow after strong emotion, not thoughts or opinions. Get jurors to reconnect with those feelings in the courtroom.
“And you said that you still have strong feelings about that incident today?”
“Yeah, wouldn’t you? I mean, sure, yes, I do. I was pretty angry, to tell you the truth.”
“And as you’ve heard, this case involves a claim of misdiagnosis as well.”
“Right, yeah I got that.”
Jurors are anxious in the courtroom, and when we are anxious, we are not in touch with our bodies and emotions. You need to get jurors to reconnect to their bodies and feelings.
“As you sit here right now, how does it make you feel to think about your own situation in the past? Would you say that your feelings are getting a little stirred up here?”
“Yeah, they are actually. I’m kind of surprised. Until you started talking about it just now, I hadn’t really thought about whole thing too much. I mean, I wrote it on the questionnaire and all but sitting here talking about it, it’s kind of coming back to me and I’m getting angry all over again.”
“And would you agree that someone who is angry is probably not going to be the best decision maker? I mean, when you were a kid, would you ask your mom or dad for something when they were angry with you?”
“No, I sure wouldn’t.”
Get the juror to realize the gravity of the situation for your client—this is the counter to the Judge’s lecture on fairness.
“And I know this isn’t exactly that same situation, but you’re feeling angry sitting here now and you haven’t even heard any of the facts of this case. And you’re going to be asked, if you sit on this jury, to make a very important decision involving my client, who is the doctor accused of misdiagnosing. If you were in that doctor’s shoes, would you want a juror like yourself on the case?”
“No, I guess I really wouldn’t.”
Although judges, most lawyers and the law like to talk about thoughts, opinions and facts, the core issue is that we are creatures of passions as well as reason, and our passions often interfere with our best efforts to be fair and impartial.
“And wouldn’t you agree that as much as you might try to be fair, you probably would not be able to stop feelings of anger if they came up during the trial, just like you couldn’t stop or even predict them right now?”
“Well, yeah, I mean, with feelings, that’s just the way they are.”
“I understand entirely. And there’s nothing wrong with that because we’re human beings and that’s the way we’re made. But that might mean you aren’t the right juror for this type of case, sir, with all due respect. Because if you have angry feelings coming up in memory of your own past bad experience, your feelings are inevitably going to color the way you look at my client, and take in the facts of this case, wouldn’t you agree? I mean, we don’t see the world in the same way when we are angry versus when we are happy or neutral.”
“Yeah, I guess that’s right. I mean, I wouldn’t want that to happen, and I would try my best not to let that happen, but yeah, when I’m feeling angry I can’t really control that and it changes the way I look at things. And I was pretty angry at my doctor.”
Try to develop a line of questioning that uses the juror’s desire to be fair in your favor, towards admitting bias rather than saying he can be fair.
“And is it fair to say that the situation with your doctor is one that inclines you to sympathize with the plaintiff in this case?”
“And most people don’t listen very well to someone else when they’re angry, wouldn’t you agree?”
“So if you’re feeling angry, you might not really hear what my client is saying on the stand in his own defense? Or you might not give it the same weight that you give the plaintiff’s testimony?”
“No, I might not, that’s right.”
Get the juror to admit that he might not give equal weight or credibility to evidence in the case. Make this concrete for the record to demonstrate to the Judge that this juror cannot be fair in this case.
“So, given what you’ve told the Court here, wouldn’t you agree that as much as you might like to, you do not start out fair and impartial, but that you start out partial to the plaintiff in this case, due to your own experiences and the feelings those rouse in you?”
“Yeah, I’d have to say yes, I guess I’m partial to the plaintiff. It’s not that I don’t think I could be fair, but it would be hard.”
Again, be persistent in the fact of fairness language raising its head again. End on a clean note.
“And if it’s hard, doesn’t that really mean, like I suggested earlier, that the plaintiff and defense are not starting off on an even playing field here?”
“No, I guess they really aren’t.”
“Your Honor, respectfully, I renew my challenge for cause at this time.”