Busting Old World Myths About Jury Selection
The purpose of voir dire and the jury selection process is two-fold:
- To facilitate the identification and removal of any potential juror who because of bias or prejudice cannot serve as a fair and impartial juror.
- For trial counsel to gather critical information for potential peremptory challenges.
Your goal as a trial lawyer is to obtain a jury where your leaders will persuade followers that you should win.
Old World vs. New World
Here I dispel 3 common myths surrounding jury selection:
1. MYTH: Post-it-notes and my manual way of selecting a jury work fine. No need to integrate technology into voir dire and jury selection.
MYTH BUSTED: You can use technology or be abused by technology! We must evolve and adapt, and the integration of technology into the courtroom during trial is essential.
There’s a need to adapt and evolve with the New World, and that means integrating technology. So much new technology is out there and it’s more affordable than you think. You cannot afford to ignore it.
If you’ve ever seen the movie The Runaway Jury, you should know that what is happening in that movie with the extensive use of technology is happening today and you cannot sit back and not move with the times. It’s an absolute certainty your opposing counsel is going to use it against you. Don’t get burned.
There are many new ways to integrate technology in the courtroom during voir dire:
- Electronic jury questionnaire summaries
- Keeping track of jurors
- Using instant messages and email
- Using a panel board or monitor to keep track of your panel
- The use of social media to get the most information you can on your jurors (ethically of course)
- Using Google searches
2. MYTH: I don’t want to taint my jury panel by talking about anything negative or have the panel bring things up that do not support my side of the case.
MYTH BUSTED: You can never, I repeat never taint a jury panel. You will surely lose your case if you are afraid to let the jurors speak freely.
Lawyers that have this old-school view and are afraid the panel will be tainted if someone talks about things that are negative to their case, are missing the train because they’re not being enlightened at the beginning. They are not arming themselves with the information needed to get a person who is not good for their case off the panel. If you don’t get information out and if you don’t ask about it, and those people are quiet, when they get to the deliberation room that is when it’s going to come out and that is when they will taint your panel. It’s crucial that you get all the information out up front, all of it, so you can effectively use your peremptory challenges and be sure you have a completely fair and impartial jury before your trial gets underway.
You can either be enlightened at the beginning or blind-sided at the end. Choosing to be enlightened at the beginning means to get all the information you need up front — no matter how offensive you personally think what they’re saying is, it doesn’t matter. Let your jurors speak and get all the information you need out. If not, you could be blind-sided at the end in the deliberation room when it’s too late and there’s no longer anything you can do about it.
3. MYTH: Jurors understand and are aware of the rules, their roles and responsibilities.
MYTH BUSTED: Absolutely positively not the case. You must educate your jury panel. Jurors are made up of many different socio-economic demographics with varied religions, races, creeds, ages, and moral ideals. These individuals do not all arrive in the courtroom understanding the job they are to perform as a juror.
It is much easier to educate a juror to think correctly, than to persuade a juror to think you are correct. You must teach them during the jury selection and voir dire process, how to think correctly –one simple example is the standard they are to use to make their decisions or the preponderance standard of proof. In civil cases it is just more likely or more probable than not. It is not beyond a reasonable doubt which is likely what 80% of them think. So if you educate jurors on the correct standard to use, as opposed to not educating them at all, they may go into trial thinking they have to prove your case beyond a reasonable doubt, which is a much higher mountain to climb. It is critical to educate them to use the right standard.
Educated jurors, especially educated favorable jurors, get right to work persuading unfavorable jurors during the deliberation process. A juror who speaks on your behalf in deliberations is less likely to back down later to other jurors because he or she has taken a public stand so backing down carries a ‘social price’ to the juror. People don’t want to pay that price. Educated favorable jurors who hear each other say things they agree with form a unity –a resolve– which reinforces each other and creates a powerful force in this group during deliberations. Educated favorable jurors are far better at changing minds in deliberations than you ever will be and I don’t care how good you are in close. Here in the deliberation room, they’re much better at it. So how well you educated these jurors controls the outcome of your case especially the size of your verdict. You must educate them with the tools needed to change minds during jury deliberations. Educate and arm your leaders with the tools they need to change minds during deliberations. This is where the real closing arguments take place!
Change your Old World mindset. Keep these myths and myth busters in mind as you conduct your voir dire and jury selection process.