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Why questions during jury selection are so personal
It’s In your court
Judge Steve Halsey
Wright County District Court
Recently I hosted a lunchtime seminar for attorneys on jury selection. In preparing for it, I discovered that some of the seemingly-improper questions asked during voir dire were found by Minnesota appellate courts not to be improper. For example, in a homicide case it was not improper for an attorney to ask: “Have you ever asked someone if they would kill your mother and offer them money?.” The questioning of jurors is called “voir dire,” Latin for “to say what is true.” So why are the questions asked of jurors so personal?
The parties to a lawsuit, whether civil or criminal, are entitled to a fair trial by a panel of impartial jurors. The seriousness of jury duty is initially displayed at the beginning of the trial when the jurors stand and swear an oath to answer truthfully the questions put to them by the judge and attorneys during jury selection. The oath is not something we take in everyday conversation. One’s significant other does not ask for an oath before inquiring how he or she looks in their new outfit.
This does not mean that the jurors must know absolutely nothing about the case, parties or witnesses. This also does not mean that jurors must have no biases, prejudices or preconceived ideas. We all have them, based upon our life experiences. What is important is that a juror is honestly able to set aside those biases, prejudices and preconceived ideas and decide the case solely on the evidence and the law as instructed by the judge. The purpose of voir dire is, frankly, not to choose the best jurors, but rather to de-select those whom the judge determines cannot or will not set aside their biases, prejudices and preconceived ideas in deciding the case.
Studies have shown that most jurors find the process extremely boring, repetitious, demeaning and embarrassing. Hence, the purpose of the seminar I discussed above. One of the duties of the judge is to insure that the privacy of the jurors is protected. Therefore, very delicate and intrusive questions are usually asked in a written questionnaire, as well as in questioning the jurors individually outside the hearing of the other jurors. For example, in a criminal trial on a charge of domestic assault or criminal sexual conduct, the questionnaire asks if the juror or anyone close to them has been either the victim of violence or has been accused of perpetrating violence on another. It can be quite shocking to find such a high percentage of our fellow citizens, or their loved ones, have been the victims of violence. Dredging up long-forgotten painful experiences can be distressing, but it is necessary when a person’s freedom is at stake. The issue then becomes whether the jurors’ experiences will unfairly color their decision-making process if they serve on the jury.
If one of the attorneys concludes that a juror cannot be fair and impartial, despite their assurances to the contrary, the attorney makes a motion to the judge, outside the hearing of the jury, to excuse the juror “for cause.” A recent very interesting Florida appellate decision reversed a burglary conviction and ordered a new trial because the judge denied a defense motion to excuse a juror for cause after she said she couldn’t be fair based on a childhood experience of a Christmas night burglary. The appellate court concluded that the judge and prosecutor basically embarrassed the juror into saying she could set aside those experiences and be fair. The defendant was denied his constitutional right to a fair trial when the juror was not excused by the trial judge “for cause.”
Technology is working its way into the courtroom during jury selection. Lawyers are using software that allows them to scan dozens of social media sites looking for postings by prospective jurors. For example, in a DWI case a defense attorney would try to find comments by jurors on social media sites or blogs devoted to incarcerating DWI offenders or passing legislation for harsher penalties. These tools may also be used to find if any jurors are violating the judge’s instruction not to discuss their jury service or the case on Facebook or other social media sites during the trial.
If jurors are not excused “for cause,” they may be excused by the attorney striking the juror from the panel without having to give a reason. This is called a “peremptory challenge,” and each attorney has a limited number (two to five) of “strikes,” depending on the type of case. Any juror being so stricken should not conclude that the attorney concluded they could not be fair and impartial. The attorney may not have a reason. However, the peremptory strike cannot be based solely on the juror’s race or gender.
In summary, who is the “right juror?” Someone who is neutral, open-minded and fair, who will decide the case based solely on the evidence and the law. Probing questions are necessary to exclude from the jury those who do not have those attributes.
— Submitted by Judge Steve Halsey, Wright County District Court, chambered in Buffalo.