We all get stuck with biased jurors sometimes who promise to set their feelings aside. I am concerned this may happen more often with Covid (fewer jurors to work with and increased pressure to get it done). This is a potential strategy to help deal with that situation.
NEW YEARS EVE RESOLUTION MODEL
Set up in voir dire
Setting bias aside is like a New Year’s resolution. It takes effort, commitment, a plan, or it will start with good intentions, but end in failure. With this resolution, you don’t have to change for the rest of your life, just until after the verdict is returned. Yet, even for a week it takes work to be successful. This is too important to take lightly or to take chances with.
Here is a suggestion for how to make it all the way through the trial. I would ask, every time a witness takes an oath, that you renew your oath silently, to stand guard to make sure those negative feelings don’t creep back in and start clouding or impacting your view of the evidence. Here is an example of how that could happen (give an example or two/ see below for three potential examples).
Bringing it full circle at the end of closing arguments
We proved our case. The only thing that could stand in the way of a significant verdict for Ms. Jones would be bias or prejudice, things like my cherry pie analogy. Thankfully, we don’t have to worry about that because anyone who might have let that happen is not sitting on this jury.
Each of you either had no negative feelings about this kind of case or took an oath to keep those feelings completely out of the way so they would have absolutely no impact. You made that commitment, like a serious New Year’s resolution. Then you renewed your oath every time a witness took their oath.
Now, more than ever, I’d ask you to renew that vow, silently, one more time as you begin this, the final, most important part where you deliberate, then deliver the ultimate verdict. Thank you for your effort and for your honor.
Potential examples for above:
1) When medical witnesses for the defense say opposite things than the treating doctors we present, the defense witnesses may have a leg up if negative expectations against cases like this were to resurface;
2) Our client looks fine on the outside, because this is not the kind of injury where you can judge a book by its cover. You have to assess it internally. If your feelings about frivolous lawsuits were to creep back in by the time Ms. Jones testifies, you might fall back into thinking, since she doesn’t look hurt on the outside, she must be fine on the inside, even though MRIs show the injury;
3) When there is no gotcha moment on surveillance film, someone who initially set aside distrust of injury claims, but unintentionally let them back in, may end up assuming there must be some exaggerating going on, even though the film shows nothing, or else the defense wouldn’t have gone to the time trouble and expense of having them followed in the first place.