Harvey Weinstein goes to trial this week. Out of approximately eighty women accusing the former Hollywood mogul of sexual misconduct over the past few decades, two assault cases will be heard by a jury this week in Manhattan. Jury selection for the case (set to take place on Tuesday) is not likely to be a walk in Central Park. In any case, with as high a profile as this one, or that touches on issues with some current societal resonance, potential jurors may try to guess at what the attorneys are after and to mask the kinds of bias that would get them tossed from the jury. According to a recent Reuters article, jurors in this case are likely to see their service through the lens of a “#MeToo” era. New York consultant Roy Futterman suggests, “They may think, ‘I want to be the one to make sure he goes to jail. I want to be the one to do justice.’” There is also the possibility that the motivation could go the other way for those who feel that #MeToo has gone too far and that some of Weinstein’s current accusers might be past beneficiaries of consensual “casting room couch” situations.
In either case, the parties have a clear interest in knowing the potential jurors’ attitudes. But how do they do that? In a case like this, those who are highly motivated to get on the jury may try to keep their head down, mask their views, or consciously perform the kind of disinterested neutrality that makes it more likely that neither side will strike them. So, what do the attorneys do? Ultimately, there is no perfect cure. We cannot put them on a polygraph or an fMRI and we cannot reliably assess honesty just by looking for nonverbal cues. But there are some best practices. I wrote in the past about the need to identify stealth jurors (this was quite a few years ago, in the context of the George Zimmerman trial). In this post, I will return to that general approach, and update it with a few examples for the prosecution in the Weinstein case trying to identify stealth anti-#MeToo jurors in this week’s voir dire.
The General Approach
Anytime you are concerned with potential jurors “stealthing” their way onto the jury — not just in high profile cases, but on any cases — there are a common set of tools that attorneys and consultants should use.
- Request a questionnaire, which leads to greater candor.
- Request attorney-conducted voir dire, which also promotes greater candor.
- Conduct a thorough and sophisticated social media analysis of the potential jurors’ public communications.
- Rely on questioning strategy, not on mind-reading or nonverbal cues.
- Ask questions that don’t signal a “correct” response but, instead, ask for reactions to reasonable opinions on both sides.
- Don’t allow quiet venire members to “ghost” their way through the voir dire — call them out.
- Ask “reality check” questions and be suspicious of those who don’t give an obvious answer.
- Continue to monitor public social media even after the selection is over.
Illustration: Questioning the Weinstein Panel to Uncover Stealth Anti-#MeToo Jurors
Mr. A, have you heard about the social trend identified by the “MeToo” hashtag? If so, what do you think about it?
Asking an open-ended question is less suggestive of a “correct” response than a leading question that gives the potential juror a proposition to agree or disagree with. When put on the spot, it is more likely that the venire member will respond in a way that points to their true feelings.
So Mr. A has said that he thinks that the movement has gone too far. Let me ask you all by a show of hands: If you had to say whether you leaned toward agreeing with Mr. A, or leaned toward disagreeing with him, which of those points of view would you be closer to?
Pivoting from the initial answer into a forced choice question is another way to put the potential stealth juror on the spot. In this case, either answer could be identified as unfavorable by one side or the other, so you are making it harder for the individual who is trying to keep their head down. You can do the same by asking agree/disagree questions on a questionnaire and eliminating the middle or the “don’t know” option.
Ms. B, I noticed that you did not raise your hand either way. Can I ask you what you think about Mr. A’s view that #MeToo has gone too far?
Ideally, you want everyone to answer, but when someone sits out a forced-choice question, follow up directly.
Now, you all walked past all of the media trucks out there, and you are no doubt aware that this case will get a lot of attention. Mr. C, are you concerned about the attention or the loss of privacy that you might face if you are selected to serve on this case?
This is the “reality check” question. Just about any reasonable person would be at least concerned with that, so there is good reason to suspect that the person who says “No,” might be trying too hard to get on the jury.
Ultimately, you want to use every tool you have, and look at the entire picture with any given potential juror. Instead of feeling reassured by that one answer the person gave, look at the overall pattern of information shared in court, on questionnaires, and in social media. Even with all of that, however, there is no guarantee that you can unmask a stealth juror. The potential to speak to and to potentially soften even your worst critic, should be part of your trial strategy.