The national conversation has recently focused on police brutality against African Americans (in the wake of the killings of Alton Sterling and Philando Castile) as well as hostility and violence toward the police (in the wake of the killing of five Dallas officers). For defense attorneys in the trial of Russell Brown, charged with a 2013 slaying of a Virginia State Trooper, it's not an ideal time to be going to trial. And to frustrate any inquiry into what potential jurors might think about "black lives" or "blue lives," the judge has also ruled that the recent shooting in Dallas is "not to be mentioned" in voir dire or trial. That judge's order resonated with me because I am currently preparing for a jury selection on a case that similarly has some strong parallels with situations that have recently been in the news, and the judge in my case has similarly prohibited any mention of these situations by counsel in voir dire.

The judge's thinking in both scenarios seems to be, "This trial is going to be about the facts in this case, not that case." That is an understandable goal, but the judge's means toward that end reflect some wishful thinking on what influences potential bias: It embodies the flawed assumption that not mentioning something is the same as guarding against it. More specifically, it limits the attorneys' ability to do their jobs, which during voir dire is to identify and to mitigate the kinds of bias that can be formed and activated by current events. In this post, I will recommend some arguments to use in making the point to the court that you should be able to ask about current events, and I will also share some ideas on what to do anyway if you are prohibited from doing so.

Here Is the Argument You Can Make to the Court

Events Drive Attitudes

Attitudes aren't formed at birth and they aren't free-floating. They are continuously shaped by experience, and they typically find expression in connection with current events. Ask a person what they think of politics and you will usually get a general answer, but ask them what they think of the current candidates and you'll get more specific reactions. In polling last week, a majority of Americans are more concerned about violence against the police than about police violence against the public. That varies significantly by race, and also based on the timing of the poll. We react to the world around us, and those reactions form and reform our attitudes. In making the argument to the court, see if you can find polling that shows, similar to the example above, that attitudes have changed in response to events. Even without specificity to the venue, that demonstrates the clear connection between events and attitudes.

And Attitudes Matter

The judge may fall back on the rationale, "but the facts in this case are different," and that is true. But events do not need to be identical in order to influence. Our attitudes are a filter for how we view new events, with our existing stories being a template for how we understand new stories. While it might be influenced by experiences, and sometimes by demographics, what we call "bias" is at root an attitude: A potential juror is considered ill-suited for a case when they hold a general orientation in their views that is incompatible with a neutral evaluation of the evidence. Voir dire focuses on that attitude for a good reason, and the same ought to apply to the attitudes that are formed in response to current events. A high-profile national story that bears upon your case cannot safely be ignored.

The Question Won't Uniquely Poison the Well

The judge's fear is that a focus on a recent current event will raise its profile and cause it to exert more influence than it otherwise would. That concern isn't imaginary, and parties shouldn't use voir dire to prime the panel to consider outside events that aren't otherwise on their minds. But that last phrase is key -- not otherwise on their minds. In cases where counsel wants to focus on current events in voir dire, it is because it is already on their minds. Not asking about it does nothing to shield jurors from its influence. Instead, it forecloses the possibility of the legitimate cause challenge when potential jurors don't believe they can set it aside, and deprives counsel of the chance to weigh that factor in their own choice of peremptory challenges.

And the Question Provides an Opportunity to Draw a Distinction

What might be the best argument to the court is that bringing up the current event provides not only the opportunity to ask about those attitudes, but also the chance to clarify that the facts of this case are different in several ways. As long as the current event goes unmentioned, the jurors might see it as a direct parallel. So a good sequence, might be:

We know that there has been some current news focus on this issue, so we want to spend some time asking how you feel about that...

Now that we have talked about your reactions to that current news, we also want to make sure that everyone understands that there are some important differences in this case...

And, If You Lose, Here is What You Can Do Anyway

In my view, the simple themes sketched out above make a much better case for asking rather than not asking. Still, my view doesn't always rule the courtroom, and you have to often play the ball where it lies. If you believe that there is a current issue that is strongly shaping the attitudes that jurors are likely to bring to court, and the judge has forbidden you from using voir dire time to ask about that issue, the solution is to ask the panel open-ended questions about the underlying attitudes. In the case referenced in the introduction, that would mean asking generally about the risks police officers face on the job. If you are right that current events are driving attitudes, then one or more of the jurors are going to mention these events in their responses. Judges are quite a bit more reluctant to shut down a juror than they are to shut down counsel, so chances are good that you would be able to hear the response, and maybe even follow up on it.