John Lowe, P.C.

Opening Up the Jury


 by John Lowe

 In jury trials, the threshold problem in obtaining a fair jury is to somehow get the jury to be open and candid in voir dire so that counsel and the Court can determine which ones have the ability to sit as fair and impartial jurors on that particular case. 

 While the problem in obtaining a fair jury does not end with that threshold, the problem is magnified ten-fold when that threshold problem is not solved.

 It has been my experience in over 30 years of trying jury trials that it is rare that counsel or the Court are able to obtain complete candor from jurors during voir dire.  The principal reason for this, based on my many debriefings of jurors after trials have been completed, is that the jurors perceive the jury selection process as a question of, “Are you a good enough person to sit as a juror?”

 No one wants to be branded as not being “good enough” to sit on a jury.  That becomes a judgment about the person’s character, integrity, family background, personal opinions, and a host of other factors, which are very sensitive and important to each juror. 

 To have those factors weighed by lawyers and a judge and found to be “so bad as not to be suitable for qualities in a juror” is something which most jurors dread.  They envision their friends, neighbors and family members looking at them skeptically and asking, “So you weren’t good enough to sit on the jury?”. 

 Now anyone who looks at the purpose of voir dire and the mechanics of it realistically knows that such reactions are unfounded and do not reflect the purpose or result of jury selection.  Nonetheless, it is that gut reaction of jurors during voir dire which causes them to be closed, secretive, and deceptive.  Jurors simply do not want to be judged wanting when it comes to jury selection, and they will go to great lengths, consciously or unconsciously, to avoid being branded as “unfit”.

 How, then, can counsel and the judge cause jurors to open up to them, to reveal their true feelings and to be candid? 

 I have confessed to many trial advocacy students I havetaught that I am embarrassed that it took me so many years to devise the simplest technique of all for obtaining candor from jurors:  change the name of the game from “Are you good enough to sit on the jury” to “Tell us enough about yourself so that the judge can determine which kind of jury you are best suited to sit on.”  How is this accomplished?  Simple. 

 While it is preferable to have the judge present the following discourse to the jurors as a preamble to the process of voir dire, either counsel can give the jurors the same explanation in order to reassure them that the purpose and result of voir dire will not be to determine whether they are good people, or trustworthy enough to serve as jurors, but rather whether they are better suited for one type of jury or another.  It is preferable that the judge give the discourse to the jurors because he has the status of the authority figure in the courtroom and they are more likely to take it to heart and be reassured if they hear it from the judge. 

 The discourse begins with an explanation along these lines:

 “Ladies and gentlemen of the jury, by your preliminary answers to the questions about your citizenship and residency, you have qualified to serve as jurors in this court.  The remainder of the process, which we call jury selection or voir dire, is aimed at determining which type of jury you are best suited to sit on as a juror. 

 “Because of the different life experiences which different jurors have had, some jurors are better suited to sit on criminal trial juries and others are better suited to sit on civil trial juries.  Even in civil trials, some jurors may be better suited to sit on personal injury trials, while others are better suited to sit on technical cases, such as patent trials 

 “The questions which will be asked of you by counsel and the Court are aimed at helping us to determine which type of jury you are best suited for.  The result may be that you will be excused from jury duty today and will serve on a different jury on a different day in this court.  You should not take any of the questions to be a judgment on whether you are a good citizen or not, as it has already been determined that you are qualified in citizenship to serve as a juror in this court. 

 “Since it is important to determine which kind of case you are best suited for, it is important for you to be as open and candid with counsel and the Court as possible in answering the questions which are asked of you.  It is only if we have the most accurate information about what your life experiences may have been and what opinions you may hold, that we will be able to determine which kind of jury you are best suited to sit on. 

 “Some of your answers may be such that the law recognizes that you would be better suited for a different type of jury, and the judge will excuse you from this trial so that you may serve on a different type of jury.  When that occurs, it is called excusing a juror for cause.  But that only means that this is not the type of case for which you are best suited, because of a reason which is specified in the law. 

 “Other questions may reveal facts which do not make a clear-cut determination of whether a juror is best suited for this particular case, and it will be up to the lawyers to excuse certain jurors whom they believe would be better suited for other types of jury duty, in what we call the exercise of peremptory challenges. 

 “All of these challenges, whether for cause or peremptory challenges, have the same purpose:  to determine which type jury you would be best suited to sit on and to seat a jury for this case comprised of jurors that are well suited to try this type of case. ”

 The experience of the author in the use of this technique has been remarkable.  Jurors will admit to the most remarkable prejudices.  They will freely acknowledge that they will be unable to follow instructions on the presumption of innocence in criminal cases.  They will openly admit to predispositions toward one side or the other. 

 In short, they will be candid and open, providing the Court and counsel with the very information which they most dearly need in order to assure that the jury which is seated is a fair and impartial jury to the extent that our system of justice can provide. 

 In one criminal trial in which I used this technique, with the preamble explanation about the purpose of jury selection, 10 out of the 20 prospective jurors on the initial panel admitted to being unable or unwilling to afford the defendant the presumption of innocence, when the question was asked.  That was simply unheard of in my previous experiences and in the experience of any lawyer I have spoken with. 

 Jurors are normally unwilling to admit that they will not give the defendant the benefit of the presumption of innocence, probably because it seems un-American or unjust or wrong, and jurors therefore don’t want to admit to it. 

 However, when they believe that such a candid answer may simply determine that they are better suited to sit on a civil jury, the truth comes out and the Court can identify those jurors who ought not to sit on a criminal jury trial because of their inability to afford the defendant the presumption of innocence. 

 Once the Court and counsel change the name of the game from “Who is a good enough person to sit as a juror?” to “Which type of jury are you best suited to sit on”, the jurors will enable the process truly to be a process of selecting fair and impartial jurors for the trial at hand.  This technique also will allow the jurors who are not selected to leave the courtroom with their self-respect and a high regard for the process which enabled them to be identified as jurors who would be better suited to sit on a different type of jury than was being tried in court on that day. 

 One of the principal benefits of this system is that it is totally impartial to both sides in criminal and civil cases.  There is no predisposition in favor of either side by having the jurors understand that they can really be honest and open in answering voir dire questions.  Everybody wins with this approach to voir dire:  the parties, the Court, the public and the jurors themselves.