Several years ago, I sat in a courtroom in Pennsylvania, assisting the defense in a capital murder jury selection. The process was involved, and potential jurors were interviewed one at a time after completing a comprehensive questionnaire. Naturally, we had scored all the questionnaires, so we had a very good idea of who was likely to be fair and who was not. During the individual voir dire with the judge, however, we watched as one after another, the jurors who we had scored best for our side, mounted the stand and proceeded to disqualify themselves from jury duty on this case. “Yes,” they had very strong feelings against the death penalty, and “No,” they could not set those opinions aside. What we saw in that case, of course, was part of the skew caused by “death-qualifying” a jury. We foisted some of that same hurt on the state’s side by pressing for “life-qualifying” their favorable jurors.
The risk of a good potential juror choosing to sacrifice themselves during voir dire is a factor that matters in all kinds of cases. No matter what counts as “favorable,” in your own case, there is a good chance that there’s a favorable member of the venire who feels that they ought to be disqualified precisely because of that favorability. For example, in a recent article for The Marshall Project, Baltimore Public Defender Todd Oppenheim writes about candidates being “Too ‘Woke’ for the Jury box.” He observes that increasing awareness of the “Black Lives Matter” campaign has led to far too many potential jurors who would bring some appropriate skepticism to the state’s case and end up believing that their opinions or experiences make them ineligible for jury duty. While it is obviously proper to remove those with a hard bias, Oppenheim’s experience is that jurors will often overstate their attitudes and their degree of inalterability. “Is your position really going to cause you to ignore evidence? Do you disbelieve every single cop, or do you have to hear from them first to decide? What if you were the victim?” He writes, “These are kinds of questions potential jurors should ask themselves to better determine whether they actually have a bias or just a point of view.” It is also a concern for attorneys in framing the voir dire. In this post, I’ll share some ideas for addressing bias in those situations. When you think that an over-recognition of bias is going to cut against you, there are three things you ought to do.
The default view of jurors walking into the courtroom is probably that a strong opinion equals bias. And in the opening remarks, the judge might reinforce that view, causing the venire members to expect that they are supposed to be blank slates. To combat that view, you need to try to send the message that opinions are normal and expected. That has the side benefit of also setting the stage for greater disclosure which makes it easier to effectively use your peremptory strikes.
To the extent you are able to make your own introduction or to influence the judge’s introduction, you might try content like this:
When the founders enshrined the jury system in our Constitution, the idea was to represent the voice of the community in the decisions being made in our courts. Well, you are that community. And communities, we know, are made of complex individuals who have experiences and opinions. Having experiences and opinions is normal. You have them, I have them. For example, I am a huge fan of [the local sports team]. My experience is that I watch every game, and my strong opinion is that they’re the best team on earth.
In normalizing opinions and experiences, you also have an opportunity to humanize yourself by sharing some of your own views. It is a good practice, however, to pick something that is relatively neutral and definitely well-removed from the issues of the case: Sports teams are often a safe bet.
Highlight the ‘Way to Stay’
Once you’ve normalized the idea of having and sharing opinions and experiences, extend that to the idea that simply having opinions and experiences is not a disqualification.
Because you are part of the voice of the community, the voice that was prized by the creators of the American jury system, it is okay that you have opinions and experiences. Those opinions and experiences don’t make you bad for the jury. In fact, you could say that having those views and perspectives underscores the point behind having a jury in the first place: We want decisions made not by machines, not by bureaucracy, but by people.
So having an opinion or an experience does not disqualify you, not even if it is a strong opinion or experience. Rather, what disqualifies you is a lack of control. If that opinion or experience is so strong that you simply could not separate it from the case at hand, and could not focus on the facts and the law in this case, then you would be better off serving in a different kind of case.
So what this conveys to the favorable potential juror is that the way to stay on the jury is to acknowledge an opinion, but to also claim some perspective and control over it, and particularly an ability to focus on the case before them.
Watch Your Consistency
Of course, you are also signaling the same thing to unfavorable jurors, who also get the message that opinions are okay as long as they can be controlled. Academics have called this approach “prehabilitation” because it conditions jurors in advance to lean toward rehabilitation in order to walk back biased statements. That is why this strategy begins with a judgment call on who is likely to be helped. It won’t always be the approach you want to use. Instead, you need to decide: If you think that too many favorable jurors are going to try to sacrifice themselves based on that favorability, then you want to raise the bar on what counts as a disqualification.
And, of course, you can’t just apply a high bar for cause when dealing with your good ones and a low bar when dealing with the other side’s good ones. Jurors are savvier than you think and will pick up on that inconsistency. If they don’t, the judge almost certainly will. So make your best judgment on whether the views of the venire tend to favor you or not, and adjust your threshold accordingly. So, if most are likely to be unfavorable, then emphasize the ways biases are powerful and hard to set aside. But if most are likely to be favorable, and might be prone to self-sabotage, then emphasize that biases are common and not necessarily disqualifying.