Chapter 6 Common Situations and Problems in Voir Dire

• Library: Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)

CHAPTER 6 Common Situations and Problems in Voir Dire

Objectives

• To explore problems and situations that arise in conducting voir dire.
• To develop skills that enable lawyers to overcome problems and capitalize on opportunities that occur in voir dire.

The social interaction that is voir dire combines the judge, lawyers, jurors, and circumstances of the case to produce a unique event. However, there are a number of situations and problems that arise in the questioning process. This chapter explores some of the more common of these and considers ways of taking advantage of the opportunities for conducting effective voir dire.¹

Seven situations and problems will be considered: (1) reluctant jurors; (2) defusing controversial issues; (3) difficult jurors; (4) stealth jurors; (5) negative spiraling; (6) good jurors; and (7) pretrial publicity.

Reluctant Jurors

As has been stressed earlier, jurors often find questioning in the voir dire process an intimidating experience. Some jurors are particularly affected by the process. They are nervous about speaking in public and reluctant to participate. They appear hesitant and reserved. Worried about the evaluations being made of them, these jurors participate in the process as little as possible. Their answers are brief. Single-word answers such as "yes" or "no" are common. Hedging an answer in the form of "I guess," "I'm not sure," or "maybe" and failing to take a position—saying "I don't know"—also are characteristic.

What should lawyers do when they encounter the reluctant juror? Should they leave this juror and proceed with the questioning of other jurors? No! Reluctant jurors cannot be ignored. Two dangers await those who do not explore the opinions and experiences of reluctant jurors. First, abandoning questioning of the reluctant juror leaves lawyers with little to no knowledge concerning this juror's opinions and biases. Just because a juror is reluctant to express his or her opinions or beliefs in open court does not mean that the juror has no unfavorable opinions. This juror can render an adverse verdict just as easily as any other juror.

Second, reluctant jurors serve as a potential model for other jurors. Remember, jurors watch to see what other jurors do and say on voir dire. Other jurors see a "bad" model when the questioning of reluctant jurors concludes without their having to provide the information requested: "See, it's not necessary to answer the questions fully. The lawyer will just give up and go on to the next juror."

Encouraging Reluctant Jurors

What can be done to break down the barriers that the reluctant juror erects? There are several skills that lawyers can bring to bear to encourage the reluctant juror to be more forthcoming.

Show empathy. Show empathy for what the reluctant jurors are going through. Expressing an understanding for the difficulty of the situation and an appreciation for their efforts in being open and candid will help reluctant jurors to open up:

"I realize that this situation is unusual and one that can make people feel a little uncomfortable." or
"This issue is something that we usually don't think about. The answer may be difficult to put into words, and I appreciate your willingness to answer my questions." [Then proceed with the question.]
Complete the empathetic response by listening carefully to their answers and showing an interest in what they have to say.

Return to the comfort zone. It is important to not simply proceed with further questioning in the face of less informative answers from reluctant jurors. Defer important questions until these jurors are more open. Return to areas of questioning where the reluctant jurors feel more comfortable. The jurors' family life and what they do on the job often are areas where they feel more comfortable talking.

"You mentioned that you have several children. Tell me a little about them, their ages, marital status, and occupations, if any." or
"You said that you work over at [business/employer]. Can you tell me a little about what you do there?"

Let the jurors become comfortable in talking (again). When these jurors feel more comfortable, questioning can return to the more important areas with a greater chance for more open and honest answers.

Use disclosure reciprocity. In situations where lawyers have not already told a little about themselves, take the opportunity to do so. These disclosures can be about the lawyers' background or similar experiences. Where appropriate, lawyers can further the disclosure process by revealing their own nervousness in this situation. With a nervous juror, such a disclosure can be particularly helpful in fostering rapport and openness. Remember, when lawyers reveal information about themselves, jurors are more likely to talk about themselves in return.

Empower the juror. Sometimes reluctant jurors (and other jurors as well) feel they are not "qualified" to answer an important opinion question or to do something that they may be required to do. They may feel unsure about what losses a child would suffer by losing his or her mother. They may feel unsure about deciding the guilt of a criminal defendant. When faced with the ultimate question, they feel uncomfortable about their ability to answer it.

Under these circumstances, it is necessary to empower reluctant jurors to answer the question. Make sure the jurors know there are no right or wrong answers. Also, help the jurors draw upon their own experiences to see that their opinions are valid or that they are "qualified" to perform their task as jurors. For example, the following approach would help empower a juror who is hesitant about rendering a verdict against the prosecution in a highly publicized criminal case.

Juror: I am not sure I can really decide a case like this. It's a pretty difficult thing to decide.
Defense Lawyer: Have you ever had to make a tough decision at work or at home—a decision that would disappoint someone?
Juror: Yes, I guess. At work, I had to fire someone last year. You know, it was a tough decision because he had a family and all. However, it just had to be done.
Defense Lawyer: I see—so you did not take the easy way out but made a tough choice. Now in this situation, could you render a decision of not guilty if the prosecution failed to prove beyond a reasonable doubt that Mr. Smith is guilty—knowing that the prosecutor would be disappointed?
Juror: I think I can.

Provide positive attention. Provide positive attention to the reluctant juror to break down the barriers to participation. Make the reluctant juror feel special or appreciated by finding opportunities present in the juror's job, activities and interests, or life experiences that open themselves up to special mention or attention. Noting the hard work and challenges faced by jurors in their daily lives (e.g., work both inside and outside the home) or levels of skill needed in many hobbies and interests, among other areas, strengthens the lawyer's bond with the reluctant juror. Strengthening this bond makes the juror feel more comfortable with participating in voir dire and, thus, more likely to do so in the future.

Tips for handling the reluctant juror:

Be empathetic.
Return to the comfort zone.
Use disclosure reciprocity.
Empower the juror.
Provide positive attention.
Reinforce the juror for opening up.

Use positive reinforcement. Finally, be sure to reinforce reluctant jurors when they do open up. Provide positive verbal reinforcement such as "thank you" and "I appreciate your telling me this" for their answers. In addition, use nonverbal reinforcers such as leaning the body forward, nodding, and smiling to help break down the barrier behind which reluctant jurors hide.

Defusing Controversial Issues

In many trials, there are issues where a significant number of jurors in the trial venire have views contrary to legal principles or requirements. For example, many jurors view a criminal defendant's failure to take the stand as an admission or indicator of guilt—contrary to their Fifth Amendment right—or view the preponderance of the evidence test in civil trials as too low a standard, particularly when potential damages are significant—contrary to the civil standard for negligence. While these issues need to be addressed in order to identify potentially undesirable jurors, these issues need to be defused so that their role in the jurors' thought processes, deliberations, and the ultimate verdict is minimized. The defusing process is a delicate one, one that balances defusing the potential problem against the potential to strengthen any potential bias inherent in the controversial issue.

The defusing process is an adaptation of the education process discussed in Chapter 4. However, three points need to be made. First, education (as reflected in rehabilitation techniques) is only partially effective and less so with ingrained or strongly held opinions and viewpoints.² Second, all potential issues should be considered for discussion, even if they are potentially moot at trial. For example, a criminal defendant may be intending to take the stand. However, this does not mean that the issue of the defendant not taking the stand should be avoided in voir dire. It so happens that those who have problems with a criminal defendant not testifying in her own behalf also have other anti-defendant attitudes and biases as well. Failure to pursue this issue may lead to (1) the lost opportunity for a successful challenge for cause on the critical issue; (2) the failure to provide "additional reasons" for a more general, cumulative challenge for cause based on several anti-defendant opinions; (3) the lack of potential support for a peremptory challenge in Bat-son-type situations; or (4) the simple failure to identify jurors with general anti-defendant biases in reduced voir dire situations. Third, the defusing process described here is ideally set up for group questioning settings. The processes described later...