THE SCIENCE OF JURY SELECTION AND THE ART OF CONVERSATION
Recently I was asked to participate in a jury selection seminar to provide insight on the most contemporary views on jury selection, scientific jury selection, and the role of supplemental juror questionnaires. As I was preparing my presentation, a 24/7 news program was cycling in my peripheral vision, both creating and filling a demand for immediate and constant information reported as it happens, and sharing the few “facts” that trickled in. As I thought about cutting-edge scientific jury selection issues, what I kept coming back to, given the distraction of the cable news, was a simple, traditional, and still useful lesson: the importance of patience and the art of conversation.
The goal of jury “de-selection” is to reveal jurors with attitudes and experiences antithetical to your case themes and messages. Effectively and thoughtfully observing juror data and reactions, and then interpreting and evaluating communicative expressions, takes experience, expertise, organization, and effort. Creating, through performance, the environment conducive to such public expression in a court of law is critical.
The courtroom is an intimidating place; especially for potential jurors. For many, it is their first time in a courtroom. The formality of the process and the unique elements of the communicative environment can impede their comfort in expressing their views. In addition, they are often unfamiliar with issues that are deeply embedded within a trial team’s experience. As such, what can roll off a lawyer’s tongue in questioning may take extra time for potential jurors to process, assess, and react to. Because the lawyers cannot (or at least are not supposed to) discuss their evidence or the law in voir dire, jurors are often asked many abstract questions which they need time to process before considering how they should answer. But here is the conflict.
Too many of us don’t like silence. We fear the uncomfortable silence that feels like it goes on and on (even if it is just a few seconds), and that becomes a real impediment to effective voir dire. The attorney asks a question, and if there is little immediate response, the attorney instantly becomes uncomfortable and abandons the question, preferring to ask another.
In one instance, we were conducting a mock jury selection for a real case with jury-eligible citizens from the venire, with the lead attorney conducting the mock voir dire. We put one camera on the lawyer and one camera on the venire. Several times, the attorney asked a question, and when there was no immediate response, he moved on to another question. But even as he was doing so, the camera focused on the jurors revealed that several hands, each time, had just begun to move. They were hesitant, to be sure. These were not decisive or bold movements. But they were indications of attitudes and views about which we needed to hear. In the rush to fill the uncomfortable silence, potentially meaningful information was lost.
Be patient. Ask the question. Raise your hand to let the potential jurors know it is okay to have such a view of the world or a particular experience. Nod your head, affirming that it is legitimate to feel such a way. Look around. Take your time. Ask it again, letting them know explicitly that there are no wrong answers; this is all about conversation, and it is the only chance lawyers have to engage in a conversation with the jurors.
Once a hand or two goes up, invite their participation with warm tone. Thank them. Then, turn to others and ask if anyone else shares a similar view. Start a conversation that will reveal those problematic experiences and attitudes. It is better to encourage them in this environment, than to have those feelings expressed for the first time in the deliberation room.
And, don’t forget about ethos. Obtaining a Jury Consultant and the Voir Dire Process can both be about ferreting out those problematic attitudes and experiences, and be about the establishment of rapport with a jury. Be calm, controlled, thoughtful; not agitated, rushed, or nervous. This is your opportunity to learn and to make your first big impression. Keep it smooth; keep it controlled.
Unlike the purveyors of 24-hour news, allow your audience some time to think and breathe a little before bombarding them with more information and questions. Your perspective jurors do not have another channel to turn to, or other forms of information at their fingertips from which to seek information. Giving them time to answer your questions thoughtfully will provide you with the best insights possible for use in the jury “de-selection” process.