How to Pick a Fair Jury

JuryI don’t care what jury consultants say, picking a jury is an art and not a science.

For most trial lawyers, it’s based on gut feelings and sizing people up quickly and peeks at what a juror’s t-shirt says or what book she’s reading.

The dirty little secret is that it’s also based an awful lot on stereotypes. I hate that part, but it’s a necessary evil.

I want to talk about uncovering juror bias during jury selection. The Sixth Amendment guarantees a fair trial and that includes a fair jury too.

If you’re looking for wisdom about how to uncover juror bias, you’ve come to the wrong place. (Sorry for the clickbait title.) I’ve tried a lot of cases and talked to a lot of jurors before trial (and after), and I’ve come to the very definite conclusion that it’s pretty much impossible to uncover all the bias during our current jury selection system.

The court system is short on time and resources. We all do the best we can. A recent case out of the Ninth Circuit shows that sometimes the court’s best efforts are not enough.

What Are We Talking about at the Bench?

Jury selection is different everywhere. But in most federal courts, the judge does most of the work. Same in D.C. “state” court. (WE’RE NOT A STATE. WE DON’T GET TO VOTE.)

Here’s how it works in most federal courts. The judge will draft before trial a list of proposed questions to ask everyone in the jury pool. The questions range from whether any potential juror knows any of the parties or lawyers, to whether a juror has read about the case in the media, to whether a juror has been the victim of a crime.

The jurors write down the numbers for the questions they have a “yes” answer on a notecard or by circling a number on a sheet with the questions.

Then the judge will call them up to the bench, one by one, for follow-up questions. During that process the poor juror is awkwardly surrounded by lawyers and facing the judge at the bench. Usually the judge turns on the “husher”—which creates white noise for the rest of the courtroom so the juror’s answers are private.

The judge will look at what the juror wrote down and tell the lawyers, “the juror answered ‘yes’ for questions 3, 7 and 10.” Then we start asking questions about each of those answers to find out why the juror answered yes.

Peremptory and “For Cause” Strikes

There are two types of strikes—peremptory strikes and “for cause” strikes.

Peremptory strikes are made by the parties and used during the last stage of jury selection, after the court has struck all jurors for whom there is good cause. They can be exercised by either side to get rid of any juror for pretty much any reason.

For cause strikes are made by the judge. Strikes for cause are for situations where the juror has some sort of bias that cannot be overcome, such as when a juror knows one of the lawyers or has an opinion about the case because of media coverage.

Types of Bias

There are two types of bias:

  1. Implicit bias is less common. It is when a juror lies to get on a jury or when the juror has an extremely close connection to the facts of the case such that bias is impossible to ignore. For example, if the case involved the kidnapping of a child during a custody battle and a juror had been kidnapped during a custody battle as a kid, then that’s the kind of connection that a judge would consider “extreme” and strike the juror.
  2. Actual bias is more common. It is when the juror says she cannot be fair and impartial for any reason in response to the judge’s questions.

That sounds like a nice, bright-line rule, right? The juror says she cannot be fair and then gets struck for cause and cannot be on the jury.

Not so fast.

Jurors don’t usually say “I can’t be fair.” Usually they say something like “I may not be able to be fair” or “I might be able to put aside my views,” then the judge will try to rehabilitate the juror to convince the juror that he can be fair. That happens through a series of follow-up questions to understand better the basis for the possible bias and to see how deep-rooted it is.

The problem with this process is that, too often, the judge is able to “rehabilitate” the juror and the juror—faced with the questions of the judge—will ultimately (even if hesitantly) say “yes, I can be fair.” Those are the magic words. If the juror says that unequivocally, then he’s in the jury pool. The only way for one side to get rid of him is to use a peremptory strike.

The colloquy between the judge and the potential juror can be brief. It may take only one follow-up question from the judge for the juror to say that she can be fair. It may take five or six tries. Sometimes the rehabilitation doesn’t work and the juror insists that she cannot be fair.

I’m of the view that once the juror has said once or maybe twice that she doesn’t think she can be fair, well then, she can’t be fair. She should be struck for cause.

Why Not Strike for Cause?

You may be wondering why the judge doesn’t just strike the juror for cause more quickly. That would be the safest route.

The problem is that most people—truthfully—are a little bit biased one way or another. But if we let everyone who was slightly biased off the jury, there would be about two people left. And you need twelve.

I’m not going to lie. During jury selection, there are always a few painful moments. There may be a juror who I want very much to serve on the jury, for whatever reason. I’ll stand there at the bench, begging in my head “Please please please say yes, I can be fair.” Sometimes she will, sometimes she won’t.

There are also times when I very much want a juror off the jury. Then it’s the opposite. I’m begging in my head for the juror to keep saying “I might be fair,” or “I’ll try to be fair.”

Most experienced judges are very good at rehabilitating jurors. Very good. I don’t know what kind of judge school they go to, but they get lots of hesitant jurors to say they can be fair.

The Magic Words

A recent case from the Ninth Circuit lays bare all of the challenges of jury selection. In United States v. Kechedzian, the Ninth Circuit addressed a case in which the judge tried to rehabilitate a potentially biased juror and failed.

Mr. Kechedzian was charged with possession of on authorized access devices and two counts of aggravated identity theft for running a fake credit card ring.

During jury selection, one juror (Juror #3) admitted that she’d had her social security number stolen and been a victim of identity theft. She said “I might be able to put that aside and just go by what I hear here in the court room.” The judge worked to rehabilitate her. She responded, “I would want to put my personal stuff aside but I honestly don’t know if I could.”

She never said “yes, I can be fair.”

Then the judge did something unusual.

COURT: So, will you tell us if you can’t, if all of a sudden you go through this case and you say you know what? My social security number is popping up in my head, and I’m going to decide this case based on what happened to me? Would you tell us that?

JUROR #3: No, I would try to be fair . . . and put my personal experience aside.

THE COURT: But if it turns out you’re going through this process and you feel you can’t—it’s not working, would you tell us?

JUROR # 3: Yes, I would.

THE COURT: Okay. All right

She stayed on the jury. The defendant was convicted at trial and sentenced to 65 months.

On appeal, Mr. Kechedzian argued that keeping Juror #3 on the jury violated his Sixth Amendment rights under both an implied bias and an actual bias standard.

The Ninth Circuit quickly concluded that it wasn’t implied bias. Even though the juror had been the victim of a similar crime, this wasn’t the kind of “extreme” connection that is necessary to lead to implied bias.

But actual bias was another story. The court of appeals found that there was actual bias:

[N]ot only were all of Juror # 3’s responses equivocal, but she explicitly noted that she was unsure if she could put her personal biases aside.

The court of appeals also rejected the trial court’s unusual effort to have the juror speak up if she thought her bias was a problem.

Moreover, there was nothing particularly curative about this arrangement (in which Juror # 3 was to tell the judge later if she felt biased). Juror # 3 noted she would let the court know if she was feeling that “it” was “not working.” What this exactly means—and when and how she would communicate this to the judge—is largely unclear.

And this arrangement provided no assurance that Juror # 3 would—or could—actually put aside her prejudices, let alone speak up once trial began. That the Government does not cite any authority to support this type of arrangement is unsurprising; putting the onus on a juror to speak up, after a trial starts, undermines the very purpose of voir dire and its indispensable role in preserving for the accused an impartial jury. Indeed, part of the reason voir dire is conducted before the presentation of evidence is to isolate a prospective juror’s biases from what they hear at trial. Especially given the investment jurors feel in their role and their commitment to seeing the process through, it seems unrealistic to expect that a juror could fairly make constant assessments of whether her feelings towards the accused were the justifiable consequence of the evidence presented so far or due to her earlier life experiences.

Under the Sixth Amendment, even a single biased juror taints the verdict. The Ninth Circuit reversed and remanded for a new trial.

I don’t envy judges who walk the tightrope between making sure there are enough jurors in the jury pool and excusing jurors for cause who are legitimately biased. But the Ninth Circuit certainly got it right here.

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