Chapter 10 Evaluating Potential Jurors
Library | Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.) |
Objectives
• To examine the various sources of information relevant to jury selection.
• To understand how individual jurors act on a jury.
• To examine methods of efficient recordkeeping.
• To develop systematic methods for evaluating jurors.
The task of selecting a jury requires that lawyers evaluate potential jurors and decide how to exercise peremptory challenges and challenges for cause. This chapter focuses on the evaluation of potential jurors. The successful accomplishment of this task requires collecting information on potential jurors, understanding how potential jurors will act in deliberations, and integrating this knowledge to produce a final evaluation for each potential juror.
There are two major sources of information regarding potential jurors: (1) information gathered prior to trial and (2) information that surfaces during the voir dire phase of trial.
So far, the focus of this book has been on the voir dire process and, with the exception of the discussion of Internet sources in the last chapter, little consideration has been given to what lawyers may find out about potential jurors before trial. Arriving at the overall evaluation of potential jurors, however, requires consideration of all information pertaining to them. Two sources of information are available at the pretrial stage: juror investigations and social science research methods. The fundamental difference between these two sources of information lies in the relationship of the information to specific jurors. Juror investigations gather information concerning the potential jurors themselves. Social science research methods consider opinions, beliefs, and background characteristics of people in the trial community to predict the desirability of potential jurors.
Jurgr investigations. In most jurisdictions, lists of potential jurors, or what are termed the trial venires, are available from the court from twenty-four hours to several weeks in advance of trial. The information available on these lists may be of a limited nature, such as the names and addresses of the potential jurors, or the lists may contain more detailed information, such as the ages, occupations, marital status, educational attainment, and any prior jury service of these jurors.
Armed with the information from the jury list, lawyers can acquire more information about potential jurors. This information comes from a variety of sources: private investigators, public records, Internet sources, juror "drive-bys," and community networks.1
Private investigations. Sometimes lawyers hire private investigators to collect background information on potential jurors. Private investigators may speak with individuals who know the potential jurors, either directly or indirectly. In addition, investigators often examine public records and drive by the homes of jurors looking for information with which to evaluate potential jurors. A summary of this information is given to the lawyers for use at trial.
Public records. Lawyers also can examine the information available in public records regarding potential jurors. These records may include civil and criminal records, motor vehicle records, property tax rolls, and political party registration. The information acquired from these records can be very valuable. For example, knowing whether the defendant hospital has sued a potential juror for failure to pay hospital bills is important in a medical negligence suit. The hospital that has sued a potential juror is probably facing a potentially hostile or unsympathetic juror.
Sources of pretrial information on potential jurors:
Juror investigations:
— Private investigationsSocial science methods:
— Public records
— Internet sources
— Juror "drive-bys"
— Community networks
— Focus groups
— Trial simulations
— Community surveys
Internet sources. The Internet has become an increasingly popular resource for investigating potential jurors. As discussed in Chapter 8, searches of online databases, media websites, websites associated with causes or entities, and social networking websites, among other online resources, can provide valuable information about potential jurors. The usefulness of this resource will only increase as more and more information is placed in public areas on the Internet.
Juror "drive-bys." Juror drive-bys are an additional source of information. In this approach, lawyers, or others, drive to the residences of jurors. They take notes regarding the jurors' homes and sometimes take photographs of relevant aspects of the surroundings. Attention is paid to such considerations as the value associated with the residence (wealth), the condition and "neatness" of the residence, the visible possessions of the jurors or their family members (e.g., toys indicating the presence and ages of any children), and the presence of any indicators of the jurors' social and political views (e.g., signs or bumper stickers supporting political candidates or causes). This information adds to what is already known about the potential jurors and serves to round out the picture.
Community networks. The last source of information obtained through juror investigations involves the use of what are termed "community networks." A community network relies on the establishment of a collection or network of individuals who represent the different segments of the trial community. When the names of potential jurors become known, members of the network are contacted to see if they know the potential jurors or have access to information from other people who may know these jurors. This information is then pooled and made available to lawyers when considering each juror. Key to the effectiveness of this approach is the development of contact people from many different segments of the trial community, not just the friends and associates of the lawyers.
CAUTION: Information from community networks is particularly susceptible to the unreliability and personal biases of the people who provide this information.
The subjective nature of much of the information at issue presents problems of unreliability in using community networks. Often network members provide such comments regarding the desirability of potential jurors as "This would be a great juror" or "Don't take this juror." However, these observations may be wrong. To minimize the risks inherent in these subjective evaluations, it is important to elicit the underlying reasons for the comment so that lawyers can judge for themselves the accuracy of the evaluations in light of their intimate knowledge of the case.
Social science research methods. Two basic research methods develop information for use in evaluating potential jurors prior to trial: opinion polling and small group research.
For more than forty years, social scientists have been using survey methods to develop profiles of who would make desirable and undesirable jurors.2 To develop juror profiles, social scientists conduct surveys or opinion polls in the trial jurisdiction. These surveys elicit the opinions and views of jury-qualified people (who are not the members of the trial venire) along with information on their backgrounds and past experiences. The profiles of desirable and undesirable jurors emerge by examining the relationships between jurors' opinions and background characteristics. In short, polling techniques determine which characteristics of potential jurors (profiles) predict important beliefs or opinions, such as opinions concerning the guilt or liability of the defendant. At trial, lawyers use these profiles to evaluate the desirability of potential jurors. For example, one study reporting on the accuracy of juror profiles predicting subsequent verdicts in a trial simulation reported that 71 percent of jurors fitting the pro-plaintiff profile returned verdicts for the plaintiff, and 86 percent of jurors fitting the pro-defense profile returned defense verdicts.3
The second source of pretrial information results from pretrial studies of community members' reactions to the case or litigation using small group research techniques. Two prominent techniques are focus groups and trial simulations.4 Both techniques bring together small groups of jury-equivalent people who consider issues relevant to the case. In general, focus groups concentrate on the discussion of issues raised in the litigation. Trial simulations attempt to more closely approximate the experience actual jurors have during trial by presenting information in a trial format, including deliberations.
Both trial simulations and focus groups primarily investigate trial issues and potential jury verdicts. However, some of these studies have sufficient numbers of "jurors" who participate so that it is possible to detect differences in verdict preferences based on the backgrounds and opinions of the participants. Like surveys, this information forms the basis for profiles of desirable and undesirable jurors. At trial, lawyers use these profiles in much the same way as those resulting from juror surveys. In addition, both techniques can be used to shape voir dire questions, by testing traditional questions and examining potential questions to determine which of the questions better distinguish between jurors who returned verdicts favoring one party or the other.
The second major source of information on potential jurors comes from what lawyers uncover about them during the jury selection process. This information, drawn from answers to juror questionnaires, jurors' verbal and nonverbal communication, and the results of the voir dire questioning process, reveals the background characteristics and past experiences of potential jurors, along with their opinions, beliefs, and emotions. These topics have been the focus of previous chapters. However, we have yet to consider an important piece of the puzzle of jury...
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