This is an extension of #26. It would be helpful to re-read it before reading this one. As I said last week, “There are two main ways the defense can misdirect a jury to the wrong conclusion: 1) By taking cherry-picked facts out of context (spotlighting them in a vacuum); 2) By playing on bias (hoping jurors will put too much weight on the wrong facts for the wrong reasons)”. This time I want to focus on the second part and how to get out in front of it in voir dire.
Explanation to the jury
Most people think trials are about two sides arguing over the facts. It may surprise you to know most of the facts in this case are not in dispute. So why do we need you? Because opposite conclusions can be reached from the same facts. One of the things that can impact conclusions reached from evidence is feelings people have against a particular kind of case or parts of it. Some evidence may be given more or less weight because of those feelings.
In a criminal case a juror who doesn’t trust the police may tend to believe them less than someone who didn’t feel that way. Or, a juror who was a victim of an assault may have a hard time not to look at the defendant through the lens of their experience in a criminal assault and battery trial. It may be asking too much for them to be completely fair and impartial, under the circumstance. Does that make sense?
Here is a simple analogy that doesn’t involve the law. [Plug in one of the analogies from Don’t Eat the Bruises, such as a best pie context. Add the following into that part.]
The facts are the facts, but my feelings about cherry pie, in all honesty, will come into play too. I wouldn’t ignore the facts, but facts are the beginning, not the end, of the process and my feelings against cherry pies are likely to impact my conclusion from those facts. I call it the “evidence plus” reality of how the human decision-making process works when there is conflicting evidence and one side’s evidence starts out behind, or the other side has a leg up.
Once you have modeled how subtle bias can have a significant, unintentional impact on their conclusions, cause challenges bias will flow much more freely.
Applying it to juror specific bias questions
When you move into the questioning and identify those with bias, ask:
I’m sure your feelings won’t cause you to ignore facts or evidence, but, is it fair to say, in all honesty, those feelings may impact which side you come down on with disputed evidence, or the conclusions you reach based on the evidence? As a result, you cannot assure the court that you could be completely fair and impartial. You’d try your best, but that is your best honest answer?
Protecting those cause challenges
The defense feels they have a constitutional right to a biased jury, so they will try to undo your valid cause challenges. The standard question is something like, “You’ll listen to the evidence and base your verdict on that evidence, won’t you?” Here is a good way to protect your cause
challenges from that kind of strawman, misleading question. Before you sit down, go back through the list of jurors who acknowledged grounds for cause and confirm there was no confusion and there are no changes. Then add this part to head off efforts to undo cause.
While you will certainly listen to and consider the evidence in reaching your verdict, those feelings may, unintentionally, have an impact on your verdict because they may affect the weight you put on evidence or conclusions from it. As a result, you cannot assure the court that you can be completely fair and impartial, is that your best honest answer?
This will discourage some defense lawyers from asking the “you’ll listen to the evidence and base your verdict on it” question. Defense lawyers are so wed to that question they’ll have a hard time coming up with another one on the fly.
If they go ahead and ask the question, jurors are more likely to answer honestly that they’ll certainly listen to the evidence, but their feelings may still affect their verdict. You can encourage them to stand their ground by objecting to that the question as having been “asked and answered”.
In any event, your chances of the judge granting challenges for cause will go way up. You will point out the following.
Simply getting jurors to say they will listen to the evidence and base their decision on it does not address the cause established. The jurors stated they understood that evidence was the beginning of the process, not the end and their feelings would have an impact on their verdict in addition to the evidence. We discussed the “evidence plus” reality of how the human decision making process works when there is conflicting evidence and one side’s evidence starts out behind, or the other side has a leg up. Based on that understanding, the jurors acknowledged, on the record, that they could not assure the court they could be completely fair and impartial based on their feelings and that reality.