Chapter 2 Jurors' Backgrounds, Experiences, and Opinions

LibraryMastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)
CHAPTER 2 Jurors' Backgrounds, Experiences, and Opinions

Objectives

• To understand how jurors construct stories that influence the verdicts they reach.
• To understand how to consider jurors' backgrounds and experiences in jury selection.
• To explore general opinions, e.g., authoritarianism and equity, held by jurors.
• To consider case-specific opinions and legal opinions of jurors.

The most important goal of voir dire is to identify jurors whose viewpoints (formed as a result of their opinions, beliefs, values, experiences, and backgrounds) will shape how they view your case and determine how they will interact with their fellow jurors during the course of deliberations. However, before we consider the viewpoints of jurors, it is necessary to examine how jurors arrive at their decisions.

The Story Model

The dominant model for explaining jury decisions is the "story model."1 The story model proposes that jurors construct "stories" for what happened based on the evidence and arguments and their general knowledge and belief systems. The stories jurors construct are then compared to the potential verdict options presented to them, and a match is sought. The result of the matching process in conjunction with the standard of proof then determines the juror's initial verdict choice. This model has proved useful in explaining how jurors process the complex information presented at trial, and it provides guidance in how to present information to jurors. For our purposes, an important feature of the story model is that jurors' knowledge, experiences, opinions, and values influence their preferences for different stories. In essence, the viewpoints that jurors bring to court influence their receptiveness to the competing stories or explanations offered by the parties.2 The lawyer's task is to uncover the jurors' viewpoints through their responses to questions regarding their opinions, beliefs, backgrounds, and experiences as well as through their verbal and nonverbal communication.3

The Viewpoints of Jurors

Opinions that jurors hold are shaped by numerous events and experiences in their lives. The jurors' backgrounds (e.g., race, gender, marital status, educational training, religious training, and occupation) and the socialization process exert a strong influence. These backgrounds often influence the experiences jurors have (for example, discrimination in the workplace, being a victim of crime, traumatic events, and military service, among others), which further shape jurors' views. Whether as the result of their backgrounds or other factors—such as having read about discrimination, wrongful convictions, or economic hardships faced by certain small businesses because of lawsuits, or having been a defendant in a lawsuit—jurors' experiences influence their opinions, beliefs, and values. The culmination of these backgrounds and experiences, opinions, beliefs, values, and personality traits creates the views jurors have of themselves and the world around them. It is this total package that jurors bring to trial. Jurors are not simply empty vessels into which lawyers pour information and arguments. Jurors are active information processors who integrate the evidence, arguments, and judicial instructions in light of who they are. In essence, the jurors' viewpoints serve as "filters" through which they process (and in some cases distort) the evidence, arguments, and law in arriving at their decisions.

Effective jury selection requires understanding how different potential jurors will view the case and how they will subsequently participate in delib-erations.4 In this chapter, we consider five sources of information to help us understand jurors: (1) backgrounds, (2) experiences, (3) global opinions and personality traits, (4) case-specific opinions, and (5) legal opinions. However, before turning to these sources, it is necessary to examine the issue of stereotypes in jury selection.5

Stereotypes

Many authors have proposed stereotypes of desirable and undesirable jurors. The following are some examples of these stereotypes.

Attorneys F. Lee Bailey and Henry Rothblatt wrote about physical characteristics of jurors in criminal trials as follows:

Generally speaking, the heavy, round-faced, jovial-looking person is most desirable. The undesirable juror is quite often the slight, underweight, and delicate type. His features are sharp and fragile, with that lean "Cassius" look. The athletic-looking juror is hard to categorize. Usually he is hard to convince, but once convinced he will go all the way for you.6

Murray Sams, Jr., proposing an exception to the stereotype that plaintiffs should desire minorities on their juries, wrote:

Plaintiffs should be very careful about taking a Jewish juror in a medical malpractice case against a doctor. Most Jews want their sons to become doctors ("My son the doctor") and they want their daughters to marry doctors. I have never figured out why, but they do.7

Clarence Darrow wrote in regard to jury selection in criminal trials:

An Irishman . . . is emotional, kindly, and sympathetic. If a Presbyterian enters the jury box . . . let him go. He is as cold as the grave. Beware of Lutherans, especially the Scandinavians; they are almost sure to convict.8

The above recommendations use stereotypes in an attempt to predict the verdicts of jurors. Stereotypes are by their very nature simplistic and, hence, tend to be inaccurate in the long run.

A closer look at stereotypes reveals a number of problems. First, stereotypes ignore where the crime or litigation is being tried. For example, is it reasonable to assume that ethnic groups (often a basis of jury selection stereotypes) in different regions of the country have the same experiences and degree of identification with their ethnic heritage? That is, do individuals of Swedish, Italian, or Germanic descent residing in Seattle have the same experiences and opinions as their ethnic counterparts in New York City, Omaha, or rural Virginia? Second, stereotypes tend to ignore the type of crime or litigation at issue. All crimes are not the same, and neither are all civil suits. Potential jurors who would not be desirable for the defendant in a murder case may be ideal if the defendant is charged with rape (or, for that matter, a murder under a different set of circumstances, e.g., self-defense), or if the defendant is being tried in a civil court for breach of contract.

A third problem with stereotypes is that they tend to focus on one characteristic. Jurors are more complex than that. The single-characteristic focus leaves the user with the questions "Which stereotypes, if accurate, are most important to know?" and "What does the possession of several stereotypical characteristics mean in terms of a juror's desirability or nondesirability?" Finally, with the sheer number of characteristics jurors possess, conflicting recommendations arise. For example, as noted by Penrod and Linz, one author contends that young jurors are good for plaintiffs while another author advises that just the opposite is true.9

While there are many problems with stereotypes, using stereotypes in jury selection is not inherently bad, deferring for the moment certain public policy considerations. In the absence of detailed information on people, stereotypes form a basis for predicting how people will behave. The first impressions people form of others are a type of stereotyping. Based on little information, people form beliefs about how others will act or what opinions they may hold, filling in what is not known with "stereotypical" information. Jury selection is no different.

The key to the issue of stereotypes lies in their use. Stereotypes may be of some limited value when there is little or no meaningful information on jurors. But the inferences from stereotypes must be tested. If a stereotype suggests that certain groups will be hostile or favorable to a party, this should be verified or invalidated by uncovering the potential juror's true opinions.10 Absent such attempts, trafficking in stereotypes is a risky business. For example, in one of the antiwar conspiracy trials in the 1970s,11 the defense thought a mother of two conscientious objectors would view the defense with favor. As it turned out, she was an adamant holdout for the prosecution. She did not agree with her sons' actions and, hence, did not fit the stereotype that parents of conscientious objectors would have antiwar sympathies. Another example comes from a catastrophic personal injury case I worked on where a potential juror who was a Republican woman from a very conservative area (normally a good defense juror) came to court wearing a foam neck collar. She was eventually removed for cause because she said she could not set aside her feelings of sympathy for what the plaintiff was going through that arose as a result of her own injury.

Backgrounds

The first source of information about jurors is the most basic source: background information. Jurors' backgrounds consist of a variety of information, including such factors as race, gender, occupation, education, and organizational membership. While these factors often play a relatively minor role in the jurors' decision-making process,12 they can have an impact. For example, in one study, the gender of jurors was the most powerful background characteristic in predicting jurors' decisions in sexual harassment cases, with females being more likely to favor the plaintiff while males were more likely to favor the defense.13 When considering the backgrounds of jurors, lawyers should consider the following question: do the jurors have viewpoints that are favorable or unfavorable to my client? Several issues should be considered when drawing inferences about the jurors' opinions and beliefs based on their backgrounds.

Identifigatign Issues. Background characteristics can lead potential jurors to identify with a party, witness(es), or events. Do jurors have backgrounds that...

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