Effective Defense Voir Dire: Making Sense of Jurors' Experiences.

• Author: Cohen, Cynthia R.

Knowing the backgrounds of jurors enables trial counsel to conduct an effective voir and to communicate easily with jurors during trials

WHAT every lawyer wants is a favorable verdict. Effective voir dire can be the key to that. A good voir dire followed by an effective opening statement can shape the direction that a case will take. A competent jury consultant can assist an attorney in communicating with the jury by making predictions regarding how each juror will view the case.

These predictions are based on discovering individual juror's biases. A juror's past experiences, including any exposure to media coverage, creates biases. Jury research is a means for identifying these biases and dispelling stereotypes. Besides understanding jurors' experiences and perceptions, lawyers must recognize other obstacles to effective presentation of the evidence and constructing clear analogies.

JURORS' EXPERIENCES

The strongest influence on jurors is their particular experience with and exposure to issues pertaining to the trial. During their lives, jurors have experienced many things that filter how they will view the trial process. The closer their experiences match the central case issue of a case, the stronger their convictions about the issue. Searching for the behavior or experiences that reveal the core belief of each juror is critical. This epicenter, so to speak, will influence convictions in the deliberation room.

The closer to the epicenter, the stronger the experience. If on January 17, 1994, you were at the epicenter of the Northridge, California, earthquake, your experience with earthquakes is stronger than if you were 30 miles away. Someone 30 miles from the epicenter has a more memorable experience than someone 300 miles away. If more than 300 miles from the epicenter, but watching television news, people may believe that they know what it is like to be in an earthquake.

Attitudes are more likely to change when there are no personal experiences reflecting the issue. During voir dire, jurors could be asked about their attitudes about drunk driving, but it is more revealing to ask about their experiences with automobile accidents or drinking. If a person was a passenger in a deadly accident, that experience will never be forgotten. A bystander witnessing a fatal accident may remember it. Seeing a serious accident on television news may fix it in one's memory, but it will fade away more quickly. Again, the closer one is to the actual experience, the stronger the effect of that experience.

Experiences are a stronger determinant of verdicts than attitudes. Individuals are products of their genetic makeup and environment. Events and cognitive processing shape their attitudes. Attitudes shift, but events and experiences are unchangeable.

THE MEDIA

In deciding on a verdict, jurors draw on their experiences and their knowledge base, which can vary drastically. Jurors, other than jurors who are lawyers or law students, obtain most of their knowledge of the law from television.

1. What Jurors Have Heard/Seen/Read

   Even if a particular case does not have a high profile, jurors have heard or read something about the legal system prior to their jury service. Virtually all jurors watch television. Some jurors have become addicted to depiction of trials a la Ally McBeal, The Practice, LA Law, Matlock, People's Court, and Perry Mason, all of which have been hit television series. John Grisham's many popular novels often show up on the laps of jurors waiting to be called into the courtroom. Whether television drama accurately shows the courtroom, this depiction becomes part of the jurors' knowledge base. What matters to the outcome of the trial are the perspectives that the jurors bring to the courtroom.

2. Combating Negative Media Influences

   If there has been a toxic spill, chances are the newspapers and television stations in the vicinity of the venue have covered the story and jurors have seen the coverage. Jurors also may have read the book or seen the movie, A Civil Action. A plaintiff's lawyer will be smart to bring out the negative media influences if the judge allows it. The good defense lawyer then must use the jurors' responses to the plaintiff lawyer's questions to advantage.

   For example, plaintiff's lawyer questions: "Ms. Jones, have you seen the movie, A Civil Action?"

   Answer: "Yes."

   Question: "Do you remember when the families of the children who were killed weren't allowed to testify?"

   Answer: "No, I'd forgotten about that."

   Question: "Do you think that it is fair that the victims or the victims' families are not always in court to speak for themselves?"

   Answer: "Fair? They should tell their story!"

   Then the defense counsel questions: "Ms. Jones, you said earlier in response to the plaintiff's attorney's question that you thought that the families should have been given an opportunity to tell their story. In A Civil Action, the trial was divided into two stages to separate the cause of the spill from any sympathy about these children who may or may not have been affected by the spill. Can you separate cause of a toxic spill from sympathy?"

   Many jurors also watch "real crime" television--Hard Copy, and the television newsmagazines such as 60 Minutes. Television newsmagazines have become more prevalent in the last decade with the addition of Dateline and 20/20. The increased number of newsmagazines that are aired on multiple nights generally throw negative light on defendants. With the increased demand for new stories, producers are looking more closely for stories of possible misdeeds from some giant company. Being portrayed on a newsmagazine is more common today as are the chances the jury pool has been poisoned by the portrayal before the jurors are selected.

   Dateline has hammered the car industry in rollover and tire defect cases. We can assume the jury pools have been poisoned by tales of Firestone tires. Dateline aired a tire story the night before we picked a jury in Los Angeles for a tire manufacturer (other than Firestone.) We looked at the jury questionnaires and gleaned that a majority of the jurors had heard of the Firestone incidents. It did not make sense to eliminate all the jurors who had heard of Firestone's quandary because in essence we would have been left with a pool that was less...