From Mastering Voir Dire, Chapter 6
- Find out how to identify and deal with stealth jurors.
There is a type of difficult juror that deserves special attention. This juror is the stealth juror. While this juror holds the biases often present in the difficult juror, the stealth juror seeks to gain a seat on the jury by masking his or her bias in order to forward a personal agenda (e.g., convict a defendant, acquit a defendant, punish a corporation or party, right a perceived wrong, or insure that the verdict is consistent with the stealth juror’s view of “justice”). Consider the following examples of jurors who may have had an agenda. A potential juror assures the court that he could be fair and impartial, which the court takes to be “sincere” and “honest.” He is subsequently qualified to serve in a murder trial. However, prior to being seated on the jury, coworkers come forward and advise the court that the juror told them that he knew the defendant was guilty and he was going to “fry the bastard” if he made it on the jury. This juror was removed.4
A potential juror claims he is currently employed as a civil attorney. Under questioning about ties to law enforcement, he discloses that several family members currently work or had worked for the FBI. However, the juror failed to disclose that he recently had applied for a job with the FBI, completed the interview process, and was laid off by his employer because the FBI had contacted his employer about potential future employment with the FBI. The juror became the foreman of the jury that eventually convicted the defendant of murder. The juror was hired by the FBI several months after the trial was concluded. On appeal, the court found that the juror’s “dishonesty was deliberate” and overturned the conviction.5
Atrial juror in a wrongful death case against Ford Motor Company was dismissed halfway through the trial when Ford lawyers discovered that the juror was a business partner and girlfriend of one of the plaintiffs’ lawyers and had allegedly recruited two of the plaintiffs in the same lawsuit.6
A trial juror discloses during voir dire that her uncle was a convicted murderer in response to questioning about having been involved in domestic violence situations, connections to those having been charged or convicted of a crime, or being a victim of a crime. However, she did not mention her personal experience in a violent past relationship with her boyfriend, for which she and her boyfriend on several occasions had sought orders of protection against each other. The jury convicted the defendant of murdering his girlfriend. The trial court granted a new trial after a juror misconduct hearing, concluding that this juror “deliberately lied because she had an ax to grind with domestic-violence suspects.”7
The major problem with stealth jurors is that they are seeking to become a member of the trial jury and will do or say whatever they think will allow them to achieve their goal. Common strategies employed by stealth jurors are to (a) say as little as possible in terms of their opinions, backgrounds, and experiences; (b) refrain from making extreme statements (so as not to reveal any bias); and (c) steadfastly maintain that they would be fair and impartial.8
It is useful to highlight two types of stealth jurors. The first type relies on “technicalities” to seek to avoid detection. These jurors do not answer a question when they do not have to, or they provide answers that are technically correct. These jurors place the burden on the lawyer to uncover the potential bias or conflict of interest with little, if any, assistance from the jurors. For example, in a criminal case, a public defender listed her occupation as “attorney” and, because of her being newly assigned to the trial court, answered “no” to whether she knew any of the court personnel, attorneys, or witnesses at trial. While the answers were technically correct, the juror did not volunteer information pertaining to her employment by the public defender’s office and the fact that she came in contact with law enforcement personnel as part of her employment (nor did it appear that the questioning conducted by the court and lawyers directly addressed this). The trial ended in a mistrial with this juror holding out for voluntary manslaughter as compared to the more serious charges supported by the rest of the jury.9
The second type of stealth juror is one that is willing to lie or mislead through acts of commission or omission. For example, the “fry him” comment by the potential juror referenced earlier reflects the most obvious form of lying when compared to his in-court assertions of impartiality. Misleading through omission is exemplified by the juror who does not respond when the question technically requires a response. For example, a potential juror in a criminal trial did not respond to the judge’s questions of the pool (in a judge-conducted questioning only jurisdiction), “Do any of you know or are any of you in any way acquainted with me, any of the parties, witnesses, or attorneys in the case?” and “Have any of you, a close friend, or close relative been a victim of, witness to, or charged with a criminal offense within the last ten years?” Unfortunately for the juror, the judge was conducting a voir dire format “test” where he brought into his chambers jurors who had not answered affirmatively to any of his questions and asked them why they did not answer. It was only then that the juror said, “I am the defendant’s fiancée.”10
Identifying and Dealing with Stealth Jurors
As with difficult jurors, the first challenge is to try to identify stealth jurors. By their very nature, stealth jurors are the most troublesome jurors to identify. Adapting and expanding the early warning signs for difficult jurors is useful. These signs are as follows:
- Are the juror’s answers inconsistent with his/her other characteristics?
- Are the juror’s answers contrary to his/her own interests?
- Are the juror’s answers inconsistent with his/her other answers (including responses to a juror questionnaire)?
- Is the juror relying heavily on “fair and impartial” type-answers?
- Is the juror exhibiting unfavorable nonverbal communication during the introduction of the case and not during subsequent examinations?
- Does the juror “leak” unfavorable nonverbal communication during critical questioning?
- Are the juror’s answers unduly precise or restrictive?
- Does the juror associate with known “unfavorable” jurors?
- Does the juror wear clothing, body art (e.g., tattoos), or display objects (e.g., victim/political buttons or reading materials) reflecting potential for identification with the opposing party?
- Is the juror familiar with websites, publications, writings, or an admirer of individuals associated with critical “negative” groups or viewpoints?11
- Does the juror use key terms or phrases that are associated with critical “undesirable” groups or viewpoints (“ObamaCare” versus “health care reform” and “tea baggers” versus “tea party patriots”)?
- Are the juror’s answers incorrect compared to information gathered by the lawyer?
Dealing with the stealth juror poses even more formidable challenges than those involving difficult jurors. Only two of the three tools present with difficult jurors are available with which to address stealth jurors: peremptory challenges and challenges for cause. As would be expected, stealth jurors are not amenable to true rehabilitation. Since stealth jurors do not admit to bias (or give extreme answers), peremptory challenges are often exercised under conditions discussed earlier when the juror tends not to be viewed negatively by the other jurors.
Challenges for cause are extremely difficult. Special attention should be given to the following approaches when employing the techniques for removing jurors via a challenge for cause discussed earlier:
- Listen for key terms or phrases reflecting a negative viewpoint. Discuss with stealth jurors the meaning of the phrases (or why the term was chosen by the juror) and how the juror became exposed to such terminology.
- Phrase questions and potential follow-up inquiries in a manner that does not give the stealth juror a “technical” way to sidestep disclosure of critical information or that relies on the juror to volunteer desired information.
- When stealth jurors provide more candid answers on supplemental juror questionnaires, have these jurors state that they were being truthful and accurate in their responses to the questions. After such assurances, follow up on key areas where discrepancies have occurred or may occur on oral voir dire, highlighting for the judge key discrepancies with the previous answers.
- Finally, point out to the court any discrepancies between the assertions of the stealth juror and any objective information to the contrary (e.g., information from background or Internet investigations revealing prior participation in lawsuits, exposure to the criminal justice system, or letters to the editor).
How to Identify Stealth Jurors
- Answers are inconsistent with other characteristics.
- Answers are contrary to his/her own interests.
- Answers are inconsistent with other answers (both verbal and on juror questionnaire).
- Reliance on fair and impartial-type answers.
- Exhibiting unfavorable nonverbal behavior during introduction and not during subsequent questioning.
- Leaking “unfavorable” nonverbal communication during examination.
- Answering in an unduly precise and restrictive manner.
- Association with known “unfavorable” jurors.
- Wearing clothing, body art, or displaying objects reflecting potential identification with the opposing party.
- Identification with negative viewpoints or entities as reflected in familiarity with undesirable websites, literature, or “most admired” persons.
- Use of language associated with “undesirable” groups or viewpoints.
- Answers are incorrect when compared to lawyer-gathered information.
4. Virginia v. Thomas, 559 S.E.2d 652 (Va. 2002).
5. The court wrote that the juror “understood that the defense counsel would likely excuse him from the jury panel if he knew the full extent of his connections to the FBI—indeed, he testified to his ‘surprise’ as not being excluded from the jury on that basis.” Richard Raymond Ramirez v. Ayers, CV-91-3802-CBM (C.D. Cal.). See also Scott Glover, Verdict in O.C. Murder Is Voided, L.A. Times, Feb. 9, 2008, available at http://articles.latimes.com/2008/feb/09/local/me-overturn9.
6. See Tresa Baldas, Small Town Trial Blues: When Suits Take Lawyers to Small Towns, It Can—But Needn’t—Lead to Big Trouble, 27 Nat’l L.J. 1 (June 6, 2005).
7. Kim Smith, Another Felony Case Jeopardized, Ariz. Daily Star, May 6, 2010, available at http://azstarnet.com/news/local/crime/article_0fe37db7-c39d-5283-b140-86c87583af01.htm.
8. Stealth jurors should be distinguished from difficult jurors, for whom the research on pretrial publicity shows are often unable to recognize their own biases. These jurors are not stealth jurors because they do not have an agenda they are seeking to achieve by being a member of the trial jury.
9. See Peter Hermann, Did Juror in Murder Trial Have Conflict of Interest?, Baltimore Sun, Sept. 18, 2009, available at http://articles.baltimoresun.com/2009-09-18/news/0909170092_1_wise-public-defender-murder-trial.
10. See George E. Mize, On Better Jury Selection: Spotting Unfavorable Jurors Before They Enter the Jury Room, 36 Ct. Rev. 10 (1999), and George E. Mize, Be Cautious of the Quiet Ones, 10 Voir Dire 8 (2003).
11. See “Recognizing the Activist Juror,” Deliberations (blog), June 12, 2007, http://jurylaw.typepad.com/deliberations/2007/06/immigration_and.html.