With the launching of this blog a fellow blogger and colleague, Brett Trout, challenged me to contribute to our new endeavor. About a month ago I found myself in a courtroom in eastern Iowa for two weeks trying an environmental case. The experience I had was reinforced shortly after this trial by an email I received from a jury consultant, Harry Plotkin, (www.yournextjury.com) who sends me a monthly email with jury selection tips.
Jury selection is really a misnomer. What we really do as lawyers is "de-select" those jurors who may have a bias against an issue critical to our client's case. We all have biases and beliefs which may make it difficult for us to be a fair and impartial juror on any given issue that might arise during the course of a trial. The goal of trial lawyers in jury selection is to identify the jurors who may have biases against their client's position and, if possible, challenge those jurors for cause. Successfully challenging a prospective juror for cause is difficult. It is almost as hard as defeating Trout in the ring. Mr. Plotkin says,
. . . too often lawyers ask prospective jurors the "can-you-be-fair" type questions. These questions rarely uncover any bias and are generally met with a wall of silence. The reason these questions do not work is that "no jurors feel comfortable admitting that they are biased, that they cannot be fair, that they may have trouble listening to both sides, that they already have suspicions about your case."
The key is to have a prospective juror feel comfortable acknowledging that she/he may have a bias, concern or belief and admitting that it would be difficult for them to ignore that strongly held belief. Once the juror expresses the "unshakeable concern" you need to have the prospective juror acknowledge that this concern, bias or belief would influence their decision in the case. One way to do that, Mr. Plotkin suggests, is to ask the following question.
Mrs. Johnson, I have no doubt that you may try to be fair. But in light of the concerns you have been telling me about, I have some doubts that you can, even if you try your hardest. Given your concerns, can you tell me that you can be 100% sure that your feelings/beliefs won't influence your thinking about this case in any way? Do you think there is any chance that your concern might be a factor - even a small one - in your verdict in this case?
Counsel for the co-defendant in my trial, Mike Coyle of Dubuque, must have read Plotkin's email before trial. Mike comfortably got several prospective jurors to acknowledge they had "unshakeable concerns" which led to successful challenges for cause. This was important since the judge required the defendants to share peremptory strikes when the defendants were not aligned on all issues.
Mike's artful use of the challenge for cause and Mr. Plotkin's email reinforced that the challenge for cause is a powerful tool for counsel. Understanding how to get a prospective juror to reveal that bias, concern, or belief and acknowledge that it will affect that prospective juror's ability to be fair and impartial is something I and others need to continuously learn to develop.
Photo on flickr by TreMichLan