Collecting Information on Potential Jurors
There are two major sources of information regarding potential jurors: (a) information gathered prior to trial and (b) information that surfaces during the voir dire phase of trial.
So far, the focus of this book has been on the voir dire process and, with the exception of the discussion of Internet sources in the last chapter, little consideration has been given to what lawyers may find out about potential jurors before trial. Arriving at the overall evaluation of potential jurors, however, requires consideration of all information pertaining to them. Two sources of information are available at the pretrial stage: juror investigations and social science research methods. The fundamental difference between these two sources of information lies in the relationship of the information to specific jurors. Juror investigations gather information concerning the potential jurors themselves. Social science research methods consider opinions, beliefs, and background characteristics of people in the trial community to predict the desirability of potential jurors.
Juror investigations. In most jurisdictions, lists of potential jurors, or what are termed the trial venires, are available from the court from twenty-four hours to several weeks in advance of trial. The information available on these lists may be of a limited nature, such as the names and addresses of the potential jurors, or the lists may contain more detailed information, such as the ages, occupations, marital status, and any prior jury service of these jurors.
Armed with the information from the jury list, lawyers can acquire more information about potential jurors. This information comes from a variety of sources: private investigators, public records, Internet sources, juror “drive-bys,” and community networks.1
Private Investigations. Sometimes lawyers hire private investigators to collect background information on potential jurors. Private investigators may speak with individuals who know the potential jurors, either directly or indirectly. In addition, investigators often examine public records and drive by the homes of jurors looking for information with which to evaluate potential jurors. A summary of this information is given to the lawyers for use at trial.
Public Records. Lawyers also can examine the information available in public records regarding potential jurors. These records may include civil and criminal records, motor vehicle records, property tax rolls, and political party registration. The information acquired from these records can be very valuable. For example, knowing whether the defendant hospital has sued a potential juror for failure to pay hospital bills is important in a medical negligence suit. The hospital that has sued a potential juror is probably facing a potentially hostile or unsympathetic juror.
Internet Sources. The Internet has become an increasingly popular resource for investigating potential jurors. As discussed in the previous chapter, searches of online databases, media websites, websites associated with causes or entities, and social networking websites, among other online resources, can provide valuable information about potential jurors. The usefulness of this resource will only increase as more and more information is placed in public areas on the Internet.
Juror “Drive-bys.” Juror drive-bys are an additional source of information. In this approach, lawyers, or others, drive to the residences of jurors. They take notes regarding the jurors’ homes and sometimes take photographs of relevant aspects of the surroundings. Attention is paid to such considerations as the value associated with the residence (wealth), the condition and “neatness” of the residence, the visible possessions of the jurors or their family members (e.g., toys indicating the presence and ages of any children), and the presence of any indicators of the jurors’ social and political views (e.g., signs or bumper stickers supporting political candidates or causes). This information adds to what is already known about the potential jurors and serves to round out the picture.
Community Networks. The last source of information obtained through juror investigations involves the use of what are termed “community networks.” A community network relies on the establishment of a collection or network of individuals who represent the different segments of the trial community. When the names of potential jurors become known, members of the network are contacted to see if they know the potential jurors or have access to information from other people who may know these jurors. This information is then pooled and made available to lawyers when considering each juror. Key to the effectiveness of this approach is the development of contact people from many different segments of the trial community, not just the friends and associates of the lawyers.
Caution: Information from community networks is particularly susceptible to the unreliability and personal biases of the people who provide this information.
The subjective nature of much of the information at issue presents problems of unreliability in using community networks. Often network members provide such comments regarding the desirability of potential jurors as “This would be a great juror” or “Don’t take this juror.” However, these observations may be wrong. To minimize the risks inherent in these subjective evaluations, it is important to elicit the underlying reasons for the comment so that lawyers can judge for themselves the accuracy of the evaluations in light of their intimate knowledge of the case.
Social science research methods. Two basic research methods develop information for use in evaluating potential jurors prior to trial: opinion polling and small group research.
For more than thirty years, social scientists have been using survey methods to develop profiles of who would make desirable and undesirable jurors.2 To develop juror profiles, social scientists conduct surveys or opinion polls in the trial jurisdiction. These surveys elicit the opinions and views of jury-qualified people (who are not the members of the trial venire) along with information on their backgrounds and past experiences. The profiles of desirable and undesirable jurors emerge by examining the relationships between jurors’ opinions and background characteristics. In short, polling techniques determine which characteristics of potential jurors (profiles) predict important beliefs or opinions, such as opinions concerning the guilt or liability of the defendant. At trial, lawyers use these profiles to evaluate the desirability of potential jurors. For example, one study reporting on the accuracy of juror profiles predicting subsequent verdicts in a trial simulation reported that 71 percent of jurors fitting the pro-plaintiff profile returned verdicts for the plaintiff, and 86 percent of jurors fitting the pro-defense profile returned defense verdicts.3
The second source of pretrial information results from pretrial studies of community members’ reactions to the case or litigation using small group research techniques. Two prominent techniques are focus groups and trial simulations.4 Both techniques bring together small groups of jury-equivalent people who consider issues relevant to the case. In general, focus groups concentrate on the discussion of issues raised in the litigation. Trial simulations attempt to more closely approximate the experience actual jurors have during trial by presenting information in a trial format, including deliberations.
Both trial simulations and focus groups primarily investigate trial issues and potential jury verdicts. However, some of these studies have sufficient numbers of “jurors” who participate so that it is possible to detect differences in verdict preferences based on the backgrounds and opinions of the participants. Like surveys, this information forms the basis for profiles of desirable and undesirable jurors. At trial, lawyers use these profiles in much the same way as those resulting from juror surveys. In addition, both techniques can be used to shape voir dire questions, by testing traditional questions and examining potential questions to determine which of the questions better distinguish between jurors who returned verdicts favoring one party or the other.
The second major source of information on potential jurors comes from what lawyers uncover about them during the jury selection process. This information, drawn from answers to juror questionnaires, jurors’ verbal and nonverbal communication, and the results of the voir dire questioning process, reveals the background characteristics and past experiences of potential jurors, along with their opinions, beliefs, and emotions. These topics have been the focus of previous chapters. However, we have yet to consider an important piece of the puzzle of jury selection: How will these jurors act on a jury?
The Jury as a Group
So far our attention has been focused on the jurors as individuals—their desirability in terms of their individual opinions, values, and experiences. To complete the evaluations of potential jurors, however, it is necessary to consider each individual in the context of the final jury. Two aspects of how jurors act on a jury are of interest: individual participation and group dynamics.
An important quality of juries should be kept in mind: juries are temporary groups. Jurors are assigned the task of participating in a jury in order to render a decision concerning a dispute between litigants. However, the lifetime of a jury is only as long as it takes to complete its task (or to declare itself unable to do so). Generally, this is a matter of a few days or weeks. The short-term nature of juries and the fact that the jurors are assigned to juries produces a situation where what jurors bring with them to the task plays an important role in how they participate.
Leadership potential. A major consideration in evaluating potential jurors is the influence that various members of the jury will have on the deliberation process. Much of this attention is on identifying potential leaders on the jury. One of the key leaders on the jury is the foreperson. This individual can exercise a great deal of control over the jury’s actions. The foreperson can direct the order of the discussion, balloting, and, through his or her leadership position, exert persuasive pressures on members of the jury. But the question is, “Who is likely to be elected foreperson?” Forepersons tend to be those jurors who have been on juries before, come from higher-status occupations and higher levels of education, are male, have experiences that are relevant to the task (e.g., mechanical engineers in patent cases), and are more assertive during voir dire (e.g., exhibit stronger responses and/or talk more).5 In addition, potential jurors who are accustomed to leading others or giving directions to others in their daily lives (e.g., through their occupations or personal activities) are likely to assume a leadership role on the jury.
Beyond being elected foreperson, which jurors are likely to be more influential or possible leaders on the jury? Obviously, those jurors who would tend to be elected foreperson are also more persuasive on juries, e.g., jurors having higher-status occupations, task-relevant experiences, and assertive personalities. In addition, the educational experiences of jurors play a role in their participation in jury deliberations. Jurors with greater educational experience participate more in deliberations, have a greater understanding of the judge’s instructions, and generally are more persuasive than less educated jurors. Jurors with higher incomes—typically related to a higher level of educational experience and higher occupational status—also tend to participate more in deliberations and are more persuasive. In general, the persuasive jurors are confident and talkative. They can persuade less confident and less articulate jurors to modify their positions through verbal pressure.6
Differences in participation. A five-category model has been proposed to represent the participation of jurors.7 The categories are as follows: (a) leaders, (b) followers, (c) fillers, (d) negotiators, and (e) holdouts. Leaders are those jurors who either directly or indirectly use their abilities, skills, and power to affect the verdict by influencing the other jurors’ opinions and/or the decision process used to reach a verdict. These jurors tend to be talkative, direct, and assertive in social situations (including voir dire questioning). In addition, influence or leadership can also arise through the social skills of jurors. These “social” leaders act through friendliness, humor, kindness, and courtesy. Noticing which jurors appear to take the lead in initiating conversations, bring other jurors into conversations, and in other ways develop rapport with their fellow jurors provides clues as to social leaders. As mentioned earlier, clues to leadership potential on the jury are high social status (associated with occupation, income, and education), leadership experience through jobs or activities, articulateness, confidence and assertiveness, analytic ability, and prior relevant experience (e.g., having served on a jury before).
Followers, on the other hand, are the “supporters” on the jury. They are more passive than leaders, yet still reach their own conclusions. However, these jurors are less self-assured and are susceptible to influence by the leaders. Jurors in occupations characterized by having to carry out the orders of others are likely candidates for followers.
Fillers are those jurors who are not assertive in any way on the jury. They lack the confidence and in some cases the intellectual ability to understand the case or judicial instructions. They are the least active of the jury members and have difficulty in deliberations. During voir dire, these jurors are the silent members of the panel, speaking only when spoken to and often unsure of their answers (e.g., “I don’t know”). Passivity and sometimes subservience characterize their nonverbal behavior. The occupations of these jurors reflect an absence of developed verbal skills. As the label implies, fillers play a negligible role in the deliberation process.
Jurors that make up the fourth category, negotiators, are the mediators on the jury. They tend to facilitate compromise and the easing of tensions. These jurors can be, and often are, leaders on the jury. The skills necessary to bring about group consensus (such as articulateness and the ability to bring out all viewpoints) are also the skills that promote leadership. Jurors with occupations that rely on their interpersonal skills in forming group consensus—not autocratic decisions—are likely candidates for negotiators. Discussing with jurors their roles in decision making at their workplace can reveal valuable clues to potential negotiators.
The final category is the holdout juror. While rare on juries (as evidenced by the infrequency of hung juries), holdouts are characterized by nonconformity, opinionatedness, and stubbornness. In many cases, these jurors reject authority and leadership by others. They exhibit opinionated views, a lack of sensitivity to the opinions of others, and little need for social approval. It should be kept in mind, however, that true “holdouts” are rare and can favor either side in the dispute. They are not always holdouts for the criminal defendants—hence they are not necessarily rebellious against authority.
While we speak of a jury as a single group, it is important to realize that a jury starts out as a collection of individuals. It evolves into a collection of subgroups that usually, but not always, coalesce into a single group identity. During deliberations, the jurors’ activities usually follow several stages and exhibit characteristic influences of group processes. Anticipating the dynamics of the deliberation process is a necessary step in evaluating jurors and in effective jury selection. Next, we consider several aspects of jury group dynamics: subgroup formation, cohesion, majority influence, and stages of deliberations.
Subgroup formation. The formation of subgroups in a jury often starts while the jury is being selected. It can be observed when jurors associate with one another at breaks during jury selection and talk together while they are sitting in the jury box. As the trial progresses, subgroups emerge when jurors have lunch together and mill around together during breaks. Subgroups form as a result of recognized commonalities among jurors. These commonalities may be in terms of physical characteristics, social status, recreational activities and hobbies, past experiences, general interests, geographical location, or opinions and values. For example, race and gender are powerful indicators of initial subgroup formation. As jurors get to know each other, commonality of interests and opinions (particularly as they relate to the jurors’ opinions about the case) gain an important role in the evolution of subgroups.
Understanding how subgroups form is important for two major reasons: the majority’s influence on minorities and the influence of the voir dire in subgroup formation. As we shall see later, the majority on the jury plays a key role in the eventual verdict that the jury reaches. Knowing which jurors will tend to come together in subgroups offers the opportunity to shape the majority on the final jury. Identifying potential subgroups also enables the lawyer to consider jurors who would serve as links between various subgroups. These individuals often share characteristics with more than one subgroup, e.g., gender or occupation. As previously discussed, mediators often serve as a link between subgroups because of their ability to bring consensus out of divergent perspectives and opinions. Since a unanimous or a particular majority verdict is often desired, it is necessary to consider individuals who could act as go-betweens or links that can bring one or more subgroups together, thus arriving at a majority faction in the jury.
The voir dire process itself can play a significant role in the development of subgroups. The questioning of potential jurors reveals their interests, opinions, and occupations, as well as other information that can serve as the basis for commonalities between jurors and the formation of subgroups. Lawyers can shape the formation of subgroups by highlighting to various jurors their commonalities with other jurors (e.g., “Mr. Smith, I see that you agree with Mr. Jones on this issue,” or “Ms. Schifflet, I see that you and Mr. Jenkins both are contributors to MADD”). Through such highlighting statements (or simply pursuing selected questions), jurors can be encouraged (but not forced) to form subgroups based on certain commonalities.
Cohesion. The cohesiveness of the jury plays a role in its ability to reach a consensus on a verdict. Jurors who work together well are more likely to be able to reach a consensus. Thus, fostering cohesion will facilitate a unanimous verdict. Cohesion stems from the abilities of jurors to blend their personalities in order to work together. However, outside forces also can influence cohesion. One of these forces is the power of suggestion. If jurors are told that they will be able to work well together, they are more likely to do so. For example, telling jurors that they all have common sense or some other characteristic (e.g., respect for one another’s opinions) that will enable them to work well together will lead to greater group cohesiveness. This power of suggestion is reinforced when the lawyers highlight the kinds of commonalities at issue.
Majority influence. The powerful influence that a majority exerts on minorities in groups is well documented. In juries, as in other groups, the majority can exert a great deal of pressure on minority members to conform to the majority’s position. This is particularly the case when the minority is one juror. In general, a simple majority of jurors who initially favor acquittal will foreshadow an acquittal. In criminal cases, however, convictions often require an initial preference for conviction of over two-thirds of the jurors. The question arises as to what type of influence majorities exert. Whether majority or otherwise, there are two types of influence that appear in groups: informational influence and normative influence. Jurors can influence each other by providing information (e.g., recalling items of evidence or parts of judicial instructions) to the decision-making process—what is called informational influence. In addition, jurors can lead another juror to conform to the majority by giving their opinions, thereby indicating a majority consensus for the desired position—what is termed normative influence. In general, informational as compared to normative influence tends to exert a stronger impact on verdicts. However, both of these influences are present and tend to be intertwined in the interactions of jurors.8
Stages of deliberations. While it may not seem so on the surface, jury deliberations tend to follow a pattern that consists of four phases.9 The first phase of deliberations is the orientation phase. At this stage, jurors define the task they face, elect a foreperson (if the position is not in some way assigned by the court, e.g., via seat number), and provide their tentative positions or views on the evidence/”what happened.” The deliberations proceed to the open conflict phase. Since the jurors have revealed their opinions and positions and are now aware of those who oppose them or have competing “stories” for what happened, they direct their comments to the jurors in opposition. This phase is characterized by a rigidity in opinions stated (or the correctness of the “stories” proposed to account for the evidence and legal instructions) aimed at changing the minds of the opposition jurors.
Conflict resolution is the third phase of deliberations. If the jury is going to arrive at a consensus on a verdict, jurors begin to identify the potential verdicts or stories for what happened that are likely to lead to agreement. The comments of jurors shift to more flexible statements. There is a lessening of the rigidity that characterized their previous statements along with greater movement toward the most acceptable verdict choice. Finally, should the jury reach a verdict (or if animosity in a hung jury is not too great), deliberations enter the reconciliation phase. The jurors express mutual support and group solidarity while attempting to heal the wounds produced by the conflict.
Integrating Information: The Final Evaluation of Jurors
When it comes to jury selection, it is crucial to consider all potential jurors in a systematic fashion. Fundamental to this approach is accurate recordkeeping.
In evaluating jurors, it is necessary to gather all relevant information available and condense it into something usable. This requires generating records for each potential juror that contain the desired information. As discussed earlier, information may be available in addition to what surfaces during voir dire. If so, the final records for jurors will include this additional information. Often such “extra” voir dire information is kept on separate sheets attached to the jurors’ records.
Three approaches to recording information on potential jurors are the jury box form, the individual form, and the individual checklist. While these approaches will be discussed separately, in many instances, a combination of these forms is used in jury selection.
Jury box form. The jury box form is a record sheet that corresponds to the physical layout of the jury box or panel. Key to this approach is that the form reflects the view that the lawyer has in questioning the jurors. For example, if questioning occurs using a panel of six, twelve, or fourteen potential jurors, the form should visually represent the respective array of jurors. Table 1 is a full-page form for a panel of twelve jurors. In cases where key information is to be asked of all jurors (e.g., views on pain and suffering or the defendant not testifying), it is possible to place codes for these areas of inquiry on the original forms. Having such forms with critical areas already noted allows for easy recording of this information for all jurors. The use of multiple forms allows lawyers to maintain the integrity of the relative positions of jurors in the jury box during the removal and replacement process in jury selection. In addition, Post-it notes or some other small, self-adhesive note pad may be used to record information on replacement jurors in their appropriate location in the juror box.
An important feature of the jury box form is that it minimizes the likelihood that information pertaining to one juror is mistakenly assigned to another juror. The juror who is speaking (or several jurors raising their hands) is simply matched up with the appropriate place on the jury box form. This form also allows for quick notations of interactions among jurors (e.g., juror 1 and juror 2 sharing a joke together or a friendly interaction), thus providing information on potential group development. In addition, the jury box gives a picture of the composition of the jury at a glance.
Individual juror form. A second approach to recording information about jurors is the individual juror form. As the name implies, the individual form contains only information relevant to a specific juror. Table 2 illustrates the type of information contained on this type of form.
The individual form contains several types of information regarding the potential juror. The initial part of the form provides certain basic background information on the juror (e.g., name, seat number, sex, age, race, and occupation). The second part of the form provides space for any additional relevant background information on the juror. This section could easily provide reference to specific background characteristics of importance, as shown in the table by the information in parentheses, including information relevant to criminal and civil cases.
The third section of the form considers critical opinions the juror reveals during voir dire questioning. Examples are given for both criminal and civil cases. Again, space could be provided for these opinions, and reference could be made to specific opinions, as shown by the information in parentheses. The fourth section contains information relevant to the presence, if any, of pretrial publicity in the case.
The fifth section provides for the overall evaluations of the juror. This section includes the final favorability rating and the rating of his or her leadership potential, along with the decision regarding the use of a peremptory challenge. The final section contains space for any additional comments. Such comments may include tactical observations and observations concerning emerging group dynamics relevant to this juror, among other comments.
The major value of the individual form is that it contains more information than the jury box form. One of the problems with the jury box form is that during lengthy voir dire, the form becomes crowded with notations and is somewhat unwieldy. The individual form stores more information. This form is particularly useful when individual sequestered voir dire is undertaken.
However, it becomes more difficult to record information on the individual forms when several jurors are providing information at one time, as in the group questioning format.
Individual checklists. The third approach involves the use of checklists. In this method, the attorney develops a list of potentially relevant characteristics of jurors. The relevant information pertaining to each juror is subsequently checked off as it is revealed on voir dire. Table 3 illustrates a few of the items that may appear on a checklist.
Checklists may serve an evaluative function as well. The checklist in Table 4 includes a rating system for jurors (e.g., checking “positive [+],” “neutral ,” “negative [—],” or “unknown [x]” in response to an item) in addition to the traditional checklist.10 When using the checklist as a rating form, the overall evaluation score for the potential juror results from combining the various ratings in some manner. Often the overall score reflects the simple addition of the various scales, with negative values assigned to negative ratings.
The checklist approach has two major advantages. First, checklists provide an easy method for recording information on potential jurors. Second, checklists provide a quick visual summary of this information.
There are, however, several disadvantages in using checklists. First, as with the individual juror form, group questioning of jurors makes the use of such forms unwieldy. Second, when using checklists with rating systems, combining the numerous ratings is problematic. Simply adding all the ratings together is inappropriate, because obviously, not all characteristics are equally important. For example, is it equally informative that a juror receives a negative rating on “views on punitive damages” while at the same time receiving a positive rating on “education”? In addition, it is highly unlikely that all of the many characteristics contained on the form are important in the determination of the juror’s favorability. Using the checklist approach as a rating system requires attention to which characteristics are relevant and the relative importance of these characteristics.
Choosing a rating form. In deciding on a method of recording information about jurors, it is important to use the approach that best suits the needs of the voir dire situation. In group voir dire, some variation of the jury box form is preferable. When jurors are questioned individually or in groups of two or three, the individual form or the checklist form may be the most efficient way to gather detailed information. During lengthy voir dire questioning in a group setting, using a jury box form in conjunction with a checklist or individual form may prove the best method for keeping track of information on potential jurors.
No matter what form is eventually chosen, maintaining detailed notes on potential jurors is important in the evaluation of jurors and the subsequent effectiveness of jury selection. If jury selection occurs over the course of several days or longer, there will be a tendency to remember more information about the jurors questioned later than about jurors encountered earlier in the voir dire process. Keeping detailed records helps to minimize any problems in selective memory. Also, it is helpful to provide ratings (even if tentative) at the end of the questioning of each juror. Waiting until the end of the day or later in lengthy jury selections can negatively impact the integrity of the rating process. In addition, overall evaluations of jurors may change as a function of the distribution of favorable and unfavorable jurors in the jury pool. It is a fact of life that some jurors look relatively better or worse after later jurors express their opinions. Thus, in practice, overall rating systems may not be as absolute as we would like. Practice in using rating scales and keeping detailed records will minimize any rating scale shifts.
Finally, as will be discussed in the next chapter, the Batson line of cases11 concerning the nondiscriminatory use of peremptory challenges places a premium on documenting the reasons for the exercise of peremptory challenges. Careful note taking concerning the jurors’ opinions, nonverbal behaviors, and backgrounds is necessary to successfully defend against a Batson challenge.
Systematic Evaluation: Assigning Values to Jurors
At the completion of voir dire, it is necessary to evaluate the potential jurors based on the information available. This information comes from many sources: opinions that jurors express on voir dire, their verbal and nonverbal communication, their background characteristics and experiences, and their likely group leadership or dominance. Assigning values to jurors often takes two (or more) steps: rating the juror on important characteristics or dimensions and creating a final overall rating of favorability.
Rating jurors. In considering how to rate potential jurors, it is first necessary to determine the areas of concern in the case and what the favorable or unfavorable characteristics are. The case analysis conducted in preparation for voir dire provides a good idea of what is important to know about the jurors, e.g., their opinions, personal experiences, background characteristics, and leadership potential.
The next step is to distinguish between jurors based on the characteristics of interest, e.g., opinions on the death penalty or willingness to award damages. One method is to establish a rating system or scale for evaluating these critical characteristics that is agreed upon by those who will evaluate potential jurors. The rating scale provides either a numerical value or a label reflecting the evaluation of jurors on a particular characteristic. Such evaluations of jurors are frequently made on a simple three-point scale (e.g., positive, neutral, and negative) or a four- or five-point scale, where “1” represents the lowest or the most positive value and “4” or “5” the highest or most negative value on the characteristics of interest.
A five-point scale is useful in many instances. The neutral position (“3”) allows for greater discrimination between jurors and reflects the potentially true state of mind of the juror.12 For example, a five-point rating scale for the jurors’ views on personal injury lawsuits would be as follows:
- Strongly supports lawsuits.
- Somewhat supports lawsuits.
- Somewhat opposes lawsuits.
- Strongly opposes lawsuits.
The above system could be applied to any major opinion of interest, e.g., monetary damages, support for the legal rights of criminal defendants, belief in the infallibility of the United States Patent and Trade Office, trust in corporations, and views on the effects of oil spills. A question or series of questions are developed that allow jurors to be placed into one of the categories. Even when a numerical system is not used, establishing the appropriate opinion categories will help to focus attention on which opinions are desirable and which are undesirable.
When rating jurors, it is important to assign scale values as soon as possible. The best time to make the rating is during or right after the questioning of the juror. If it is not feasible to make immediate ratings, rate the jurors at the next recess or other appropriate break. Practice prior to trial in making ratings will increase both the speed and reliability of evaluations made in the courtroom.
For jury selections that last more than one day, review the evaluations and ratings of jurors over the course of the process. During the evenings, address the ratings of each juror under consideration. Seek consensus on the final evaluations of each juror when more than one person is rating jurors. When consensus is not possible, additional information should be sought concerning the potential jurors at issue during subsequent voir dire questioning in order to achieve agreement on their ultimate desirability.
Sometimes there is a temptation to treat “good” jurors in a superficial manner when discussing the desirability of potential jurors. However, it can be a mistake to ignore good jurors. Jurors can start out appearing to be favorable to the client (perhaps because of some desired background characteristic or personal experience) only to reveal undesirable qualities upon closer scrutiny. By determining both good and bad points of all jurors, overlooked areas of inquiry surface along with a total picture of the jurors’ desirability. Thorough questioning of the jurors will also yield benefits in developing examples for later use at trial that communicate desired points, e.g., examples or analogies from business, school, or household settings.
Finally, in the process of reaching consensus, there is often a need to put the information that lawyers have recorded about potential jurors in more manageable form—on index cards, for example. However, care is needed in reducing information on potential jurors so that nothing of value is lost. Decide what information is important and be sure it stays with the ratings of potential jurors.
Making the final rating. Once ratings of the information on potential jurors have been made, it is necessary to combine these ratings into a single rating or set of ratings that will serve as an indicator of the party’s preference for the potential juror. For example, in many personal injury cases, the juror’s willingness to award damages, (b) preference for equity, (c) views on the responsibility accorded the defendant for the actions at issue, (d) views on lawsuits, and (e) important personal experiences (e.g., prior involvement in lawsuits) should be combined into an overall preference rating for the juror. These considerations may be in addition to any survey-based profiles of favorable and unfavorable jurors.
In most cases, the evaluations of jurors involve the subjective weighting of the value given to each characteristic. For example, when the plaintiff’s case is strong on liability, the dimension of willingness to award damages may be assigned more importance (greater weight) than the dimension of liability. When empirical studies are available (e.g., trial simulations, focus groups, or archival data), the results of these studies may indicate the relative importance of the various characteristics.
The final ratings themselves should contain enough diversity to allow for discrimination between jurors. A five-point scale reflecting the intuitive dimension of favorability to the client is often useful. This scale would be set up as follows:
[ ] 1. Very favorable/positive (pro-client)
[ ] 2. Somewhat favorable/positive (leaning toward client’s position)
[ ] 3. Neutral (not leaning either way)
[ ] 4. Somewhat unfavorable/negative (leaning toward the opposition’s position)
[ ] 5. Very unfavorable/negative (pro-opponent)
Assigning a score from 1 to 5 generally offers enough spread between values to allow adequate discrimination between jurors. For those who are less comfortable using numerical scales, it would be just as easy to rate jurors on an analogous plus/minus system:
[ ] + + Very favorable/positive
[ ] + Somewhat favorable/positive
[ ] 0 Neutral
[ ] – Somewhat unfavorable/negative
[ ] – – Very unfavorable/negative
Employing a seven- or ten-point scale is useful when even greater discrimination is needed for either low or high scores (e.g., the potential for many jurors being rated as “1s” or “5s”).
In many cases, implicit in the favorability score is a two-prong test of jurors’ opinions.13 For example, for plaintiffs, consideration is given to both the juror’s willingness to decide liability in the plaintiff’s favor and the juror’s ability to award significant damages. For civil defendants, consideration is given in the opposite direction, i.e., the reluctance to hold the defendant liable and reservations in returning a significant damage award. In the criminal area, defendants in death penalty cases oftentimes balance the juror’s overall support for the death penalty with his or her receptivity to certain types of mitigating evidence. By the same token, prosecutors must balance a juror’s support for the death penalty with receptivity to certain types of mitigation evidence and the juror’s ability to personally return a verdict of death. Recognizing the implicit tests inherent in the case will improve the utility of the favorability scores developed.
In addition to the juror’s overall rating of favorability, it is necessary to consider how dominant the potential juror will be on the jury. For this, a number of factors are of interest:
- The juror’s assertiveness during voir dire
- The juror’s self-confidence and strength reflected in his or her nonverbal communication
- Any leadership of other jurors the juror exhibits during breaks
- Any differential treatment accorded the juror by other jurors
- The presence of social status, educational background, occupation, past experience or training, or organizational membership indicators of leadership
These observations form the basis for evaluations of dominance and leadership. Since finer points of discrimination on leadership are not usually necessary, a five-point dominance/leadership scale is usually sufficient. Such a scale would be set up as follows:
[ ] 1. Very weak (nonparticipant)
[ ] 2. Somewhat weak (follower)
[ ] 3. Average/neither dominant nor submissive
[ ] 4. Somewhat strong (influential but not a leader)
[ ] 5. Very strong (likely leader)
The reason for separate ratings on favorability and dominance and leadership is that the favorability of potential jurors is independent of how much influence they will exert during the course of jury deliberations. Having both ratings gives a more complete picture of whom to reject. For example, a potential juror who is very unfavorable (scores a “5” or “– –” on the favorability scale) and also is very strong (scores a “5” on dominance/leadership) would rate the higher priority for rejection than a potential juror who also is very unfavorable yet is weak (scores a “1” or “2” on the dominance/leadership scale).
Employing ratings of leadership in this manner also facilitates the consideration of group dynamics in the decision to accept or reject jurors. In some cases, it is desirable to include dominant yet somewhat unfavorable jurors on the jury (provided the case is strong). This is particularly true when there is a possibility that a dominant, very unfavorable juror might enter the jury because of an insufficient number of peremptory challenges. This circumstance also can arise in situations where making a decision in favor of the client requires jurors to go against popular opinion.
When time permits (e.g., during lunch breaks or overnight recesses), it is helpful to develop a visual representation of the jurors under consideration. One such approach involves placing the jurors’ names along with their ratings and other important information on index cards. These cards are ordered from least favorable to most favorable on a bulletin board or table, based on the ratings of these jurors. This method enables lawyers to see at a glance the relative favorability of numerous potential jurors. In addition, it provides an easy method to discriminate between potential jurors who fall into the same category. The chart on page 278 illustrates this approach. The numbers in parentheses reflect the jurors’ favorability rating followed by their dominance rating as may be found in the struck jury method.14
As can be seen in the chart, not everyone within a category is equally desirable. This becomes important when considering whom to reject within a given category and there are not sufficient peremptory challenges to reject all jurors from the category. Using the chart, when three peremptory challenges are available, the most likely candidates for removal are juror 12 [5/5], juror 5 [5/4], and juror 18 [4/5].
One final point remains in developing ratings of the desirability of potential jurors. It is important not to settle for oversimplified statements of desirability and undesirability, e.g., “No way can we take this guy.” It is necessary to have comparable information for all jurors. Particularly in longer jury selections, where people tend to remember general assertions and forget the underlying reasons for these opinions, complete information on all jurors is crucial to effective jury selection.
1. It is important to recognize the legal limits of investigating jurors. Contact with potential jurors is strictly forbidden. However, the appropriateness of contact with the family members of jurors or their associates can vary between trial jurisdictions. Anyone who pursues juror background investigations should make sure that all relevant personnel are aware of what is permitted in their trial jurisdiction. In addition, the sponsor of juror investigations also needs to weigh the advantages of collecting certain types of information (e.g., comments from neighbors or employers) with the disadvantages of the investigations becoming known to individual jurors. Alienating potential jurors through background investigations gone astray can have some very negative consequences for the lawyer.
2. For a discussion of the use of surveys in jury selection, see Jeffrey Frederick, The Psychology of the American Jury (1987); Jeffrey Frederick, Using Juror Surveys to Solve Problems at Trial, For the Defense 8 (Aug. 1987); and Jeffrey Frederick, Social Science Involvement in Voir Dire: Preliminary Data on the Effectiveness of “Scientific Jury Selection,” 2 Behav. Sci. & L. 1 (1985).
3. See Frederick (1985), supra note 2, at 390.
4. See Jeffrey Frederick, Searching for Rocks in the Channel: Pretesting Your Case Before Trial, For the Defense 26 (Apr. 1990), and Frederick, Psychology of American Jury, supra note 2.
5. See Shari Seidman Diamond, Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 Buff. L. Rev. 717 (2006).
6. See Reid Hastie, Steven D. Penrod, & Nancy Pennington, Inside the Jury (1983). It is also the case that jurors who sit at the ends of the tables in the jury deliberation rooms are more likely to be elected foreperson. This position is likely to combine factors such as location and the fact that those who are leaders are likely to choose these positions.
7. See Jurywork: Systematic Techniques (National Jury Project 2009). In some jurisdictions, a designated seat in the jury box determines who will be assigned the role of fore-person. In these jurisdictions, the importance of the role of foreperson is likely reduced but not necessarily eliminated.
8. As an example of the power of normative influence, consider the following exchange between a judge and a juror during the post-verdict polling of a jury that had found the defendant guilty.
COURT: Ms. Moore, the question that was asked—we read off the three verdicts. The question was asked to you, was this then, meaning when you were back in the jury room and signed the verdict forms, was that then and is this now your verdict on all three charges?
JUROR MOORE: I mean, I just voted with the rest of the people. I wanted to vote no.
COURT: Do you agree with the verdict forms as tendered and read by the clerk?
JUROR MOORE: Do I agree with them?
JUROR MOORE: No, but I just voted with everybody else.
COURT: Did anybody force you or coerce you into signing?
JUROR MOORE: No. It was—I wasn’t the only one that voted that way. We just voted for everybody else’s sake.
9. See Frederick (1987), supra note 2, for a further discussion and citations.
10. For a more complete checklist, see Joan M. Brovins & Thomas H. Oehmke, The Trial Practice Guide: Strategies, Systems, and Procedures for the Attorney (1992).
11. See Batson v. Kentucky, 476 U.S. 79 (1986); Hernandez v. New York, 500 U.S. 352 (1991); J.E.B. v Alabama ex rel. T.B., 511 U.S. 127 (1994).
12. A five-point scale is often preferred to a four-point scale. A four-point scale can force the rating of a juror into an artificial position of either favoring or not favoring the party. In addition, lumping “neutral” and “leaning” jurors together can have unfortunate consequences. If one is not careful, a peremptory challenge inadvertently may remove a neutral juror while allowing a leaning juror to remain.
13. For a more detailed discussion of such two-prong tests, see Jeffrey Frederick, Voir Dire Techniques to Maximize Damage Recovery: A Primer, 21 The Journal 1, 32–38 (2009).
14. In the sequential method of jury selection, the jurors under consideration at any one time may be as few as one to as many as twelve to fourteen jurors or more. Using such a visual ranking approach in this method during a recess is often not practical or useful.
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