After a jury returns a result that seems unfair or contrary to the evidence presented at trial, it is too late to ask “Who are these people on my jury and how could they have reached that result?” Lawyers need to ask these questions and understand the answers to them before the trial begins.
The Role of the Jury
The original intention that juries would be made up of local citizens having firsthand knowledge of events giving rise to a dispute has been made obsolete by larger, more complex societies. Today, the purpose of the trial is to educate the jury about the details of the case. Modern jurors are presumed to know nothing about a case before it begins. In the current system, it is assumed that prior knowledge of a case would influence a prospective juror and prevent the person from approaching the case with an open mind. However, in reality, every juror evaluates a case based on his or her personal experiences, beliefs and opinions.
A juror’s own personal experiences, beliefs or opinions may result in bias toward one side or another at trial. A juror may decide against a plaintiff because the juror is offended by lawyer television advertising, believes that lawsuits drive up insurance costs or worries about being sued one day. Biased jurors like these are harmful to our system of civil justice, because our system depends upon people having confidence in the fairness and integrity of the jury system. Jury bias erodes this confidence.
Ensuring an Unbiased Jury
With so many people with strong opinions and beliefs that might cause bias, how can we make sure to get a fair and unbiased jury?
In order to anticipate what kinds of prior opinions and beliefs might influence jurors in any particular case, we often conduct focus groups to test how regular people respond to a particular case. Focus groups help us to identify what types of opinions and beliefs would make someone unable to be a fair juror in the case.
We have developed detailed questionnaires to gather information about every person in the jury pool, which helps us (and the Judge) decide whether each person can be fair and impartial in a particular case. Jurors responding to the questionnaire are able to do so privately, rather than having to announce publicly their beliefs or opinions in a crowded courtroom, so they are more likely to provide complete and honest responses to the questions. Here is an example of one of the questions in the questionnaire:
Many people on TV and in government, and on the Web and in newspapers, are concerned about what they call “tort reform”: too many lawsuits, frivolous lawsuits, big verdicts,
runaway juries, greedy lawyers, greedy clients and verdicts making prices go up and driving away jobs and doctors. As a result, some people think the court system needs changes. Others think things are OK as they are. Which side are you closer to?
A similar question was presented to a jury pool before a recent medical malpractice trial. The answers revealed that many jurors were unfit to sit on a medical malpractice jury and thus dismissed for cause. Follow-up questions to jurors providing unclear answers resulted in many more being dismissed from the jury for cause.
Lawyer-Directed Voir Dire
Lawyers are skilled at eliciting information from people who are not initially truthful or forthcoming. When it comes to jury selection, it is a real mistake to believe what prospective jurors say without further scrutiny.
Although judges in Maine have been resistant to lawyer voir dire in the past, there is trend toward affording lawyers more leeway, reflecting the growing acknowledgement that juror bias is a real issue.
By statute, all jurors in Maine are administered an oath in which the juror must swear that he or she “will give a true verdict therein according to the law and the evidence given you.” 14 M.R.S.A. §1206. Accordingly, where someone has conflicting opinions or beliefs that would make it impossible to carry out this oath, that person cannot serve on the jury.
Maine law and court rules permitting jurors to be challenged “for cause” and for “peremptory challenges” are intended to eliminate anyone with any bias from serving on the jury in a case. 14 M.R.S.A. § 1204. Peremptory challenges afford each side the additional opportunity to strike those whom they believe would not be qualified or impartial jurors in the case, but whom the Court refused to strike for cause.
There is a compelling case to be made for lawyer voir dire in every case, and certainty for lawyer follow-up questioning to answers provided on juror questionnaires or in response to a judge’s questions, whenever such answers leave any room for doubt about a juror’s ability to be fair and impartial in a case.
Winning a case at trial has as much to do with selecting the right jury as it does with presenting the case. Before taking a case to jury trial, it is critical that efforts be made to understand what opinions and beliefs might affect a juror’s response to the case, and to ensure that the jury selected has the ability to be open minded, fair and receptive to the case.