Potential jurors are more likely to lie or omit information when judges conduct questioning

By Trisha Renaud

An angry Virginia judge last month accused jurors of not telling the truth during voir dire in a child molestation case and reluctantly declared a mistrial.

Virginia Judge Frederick G. Rockwell III was livid, and he let jurors know it. “The only way that this system works is if people tell the truth,” he said, according to the Richmond Times-Dispatch.

The trial of defendant Edward L. Hope Jr. was derailed after a juror sent Rockwell a note complaining of three jurors with biases that had not been disclosed earlier in voir dire. One juror had heard accounts of Hope being taken from his workplace in handcuffs. Another juror had previously been falsely accused and questioned by police, and a third had preconceptions about molestation victims since his wife had been molested.

All of this was news to the judge and the lawyers. None of this information had been revealed during jury selection.

It’s unclear just how extensive or complete voir dire was in this case. According to the Richmond newspaper, Rockwell and the lawyers had spent about two hours questioning jurors before the panel was selected, asking about such topics as their connections to law enforcement and their experiences with crime.

No doubt, the process was frustrating to not only the judge, but to the lawyers and the parties. The ability to make appropriate challenges for cause and use peremptory strikes effectively depends on getting accurate information from jurors during voir dire.

But jurors do sometimes lie, as most litigators know. They also fail to bring up information that they know or should know is relevant to the case.

A 1991 study made just that point. Researchers observed jury selection for 31 criminal trials, then interviewed 190 jurors after the trials were over, asking many of the same questions jurors had answered during voir dire. About one-fourth indicated during the post-trial interviews that they or a family member had been a crime victim when they had not revealed that information in voir dire. Almost 30 percent told interviewers they knew someone in law enforcement but had failed to reveal this in court. (See Richard Seltzer, Mark A. Venuti and Grace M. Lopes, Juror Honesty During the Voir Dire, Journal of Criminal Justice, Vol. 19, pp. 451-462 (1991).)

So how can juror honesty and disclosure during voir dire be improved? What is the best method to get accurate information from jurors?

Potential jurors are more likely to be forthcoming when voir dire is thorough and when the lawyers, rather than the judge, ask the questions.

In the 1991 study mentioned above, the voir dire in most cases was brief. In 29 percent of the cases, voir dire lasted less than an hour. In only 13 percent of the cases did the questioning take more than two hours. And, in four cases, panel members were asked a total of six questions.

In addition, in 63 percent of the cases, the judge asked all the questions. In only one case were lawyers allowed to conduct the entire voir dire.

An earlier study from 1987 looked specifically at the issue of juror candor in the settings of judge-conducted voir dire versus attorney-conducted voir dire.

In this study, 116 jury-eligible people filled out written questionnaires about their attitudes on the legal system. Then they were brought into the courtroom for voir dire sessions conducted by persons with legal backgrounds playing the roles of judge and attorneys. The mock jurors were asked the same questions they had answered earlier in the questionnaires. Researchers noted any differences in jurors’ responses. (See Susan E. Jones, Judge- versus Attorney-Conducted Voir Dire, An Empirical Investigation of Juror Candor, Law and Human Behavior, Vol. 11, No. 2, pp. 131-146 (1987).)

What happened? People were nearly twice as likely to change their answers in the courtroom when questioned by a judge as when questioned by a lawyer. Women were somewhat more likely to change their answers than men. Even three ministers who participated in the sessions changed their answers significantly.

Across the board, the mock jurors were more candid about their attitudes and beliefs when the lawyers conducted voir dire.

Researchers concluded that the mock jurors tried to supply the answer they believed the judge wanted to hear—the one they believed to be the most socially acceptable rather than their true belief. In an attempt to conform to some perceived judicial standard, they shifted from moderate attitudes to more conservative ones.

The researchers also examined how candid jurors were when the questioner adopted either a formal or a personable style, and when the questioner disclosed some small background information about himself or herself, a technique known as “reciprocity.”

Neither personal disclosure nor a more personal style improved juror candor when the judge was the one asking questions. In contrast, jurors’ answers were more consistent when attorneys asked the questions, particularly when a more personable style was used.

The problem isn’t that judges are unskilled at asking questions or that they are all intimidating personalities. The issue is their status—the robe and the high bench are visible signs of authority and higher social status. Jurors get it.

The respect jurors have for the position of judge—and most show great deference to the court—doesn’t make them more forthcoming when talking to a judge. On the contrary, that respect causes them to want to please the judge and to avoid embarrassment by conforming to a perceived notion of what is socially acceptable.

So when you’re in federal court—where judges conduct the vast majority of voir dire—keep asking the judge for opportunities for counsel to participate in voir dire. If the judge is reluctant and concerned about moving the case along, suggest a time limit on the lawyer portion of voir dire.

If that fails, propose a supplemental juror questionnaire. It will likely provide better answers than those the judge elicits during voir dire.

The focus group or mock trial will help reveal how jurors are likely to evaluate the case and why.

By Trisha Renaud

Ever been caught off guard by jurors?

Maybe it was the time you were confronted with that overlooked detail that jurors found so important in their deliberations.

Perhaps it was the skeptical look on their faces as you expounded on the theme and storyline you once thought so brilliant.

If so, you should consider a test run for your next case: a focus group or mock trial.

Product marketing campaigns are tested on small groups before being launched on a large scale. New medications are subjected to clinical trials before they are approved for release. Politicians float trial balloons to see how the public reacts to their ideas.

Similarly, your cases almost always will benefit from pretrial juror research. While research can never simulate the complexities of a trial, it can provide you with valuable insights long before you enter the courtroom.

Already got your own testing methods, you say?

Bouncing ideas off colleagues, family or friends might yield some insight, but this feedback is of limited use. These folks may try to be objective, but they inevitably approach the case with a bias in your favor. And, odds are, your presentation isn’t exactly objective.

Lawyers’ objectivity inevitably suffers because they are too close to their cases and too invested in their viewpoint. They view the case with a legalistic tunnel vision, meaning that the issues or evidence they consider critical often bears little resemblance to what non-lawyers (read: jurors) find important.

The focus group or mock trial will help reveal how jurors are likely to evaluate the case and why. Properly conducted, this type of pretrial research provides critical information that enables lawyers to fine-tune or sometimes totally revamp their case.

Focus groups typically involve six to 12 people who listen to a neutral presentation of case facts. Participants engage in moderator-led discussions that examine key facts, critical issues or witnesses. Participants may be asked to complete written questionnaires at various points during the session.

Mock trials generally more closely resemble actual trials in that they are longer and contain more formal presentations. They feature the testimony of witnesses, opening statements, closing arguments and jury charges. Jurors deliberate and reach a verdict, then are debriefed by the moderator/facilitator.

Mock jurors and focus group participants usually are recruited to reflect the makeup of the venue’s jury pool, but there are exceptions when the research aim is to explore a particular demographic.

In both types of sessions, participants sign confidentiality agreements.

Good pretrial research involves more than just rounding up people, running down the facts and asking for a vote. Why participants decide the way they do is just as important as what they decide. It is for this reason that sessions developed and run by trial consultants usually obtain more useful information than those put together by untrained staff.

In either the focus group or mock trial, trial consultants function as a neutral voice, asking questions that will get to the root of participants’ thinking. An untrained moderator will likely fail to elicit critical information and will unconsciously influence the discussion and the outcome.

It is the consultant’s responsibility to ensure that participants are representative of the venue’s jury pool and are properly screened for conflicts. A consultant will also assist in planning presentations and developing questionnaires to assess juror reaction at various points throughout the session and at conclusion.

Sounds great, but you’ve got no time, you say? Got your hands full getting ready for trial?

Viewing focus groups or mock trials as a frill or a distraction from trial preparation is short sighted. Preparation for these sessions is preparing for trial.

Working to condense the case into a streamlined presentation for a mock jury yields a clearer grasp of both what’s important and the big picture.

You’ll also learn about your opponent’s case. In any pretrial research, the opposing side’s presentation must be as strong as possible. That slant is designed to maximize the opportunity to learn what jurors like or dislike about the opposition and how its arguments might be countered.

Obviously, staging focus groups or mock trials is an added expense to trial preparation, but it is an efficient way of testing your case that can pay off. It is most useful early in the litigation process, when the knowledge can be put to use.

A word of caution: Because the sample size is too small to make accurate statistical predictions about what trial jurors will do or to determine a definitive favorable/unfavorable juror profile, focus groups and mock trials do not predict verdicts.

But they will give you insights unavailable from any other source.

Judges seem to be in a bigger hurry these days when it comes to voir dire.

Few on the bench ever grant the litigator’s dream: free rein and unlimited time to question the venire panel. Yet, of late, judges appear to be even more pressed than usual.

Some judges are choosing to do the questioning themselves. Others are setting limits on each side’s time with the panel. And some are just pushing lawyers at break-neck (and nearly break-less) speed.

 No matter what form it takes, abbreviated jury selection is a problem for the unprepared lawyer. You may plan for the perfect voir dire, only to be given less than half the anticipated time to do it.

The solution? When time is short, voir dire must be focused and productive.

That means curtailing the urge to use questions for argument or advocacy and, instead, concentrating on ways to gather the most information possible about your jurors.

Jury selection has several well-recognized goals: Establishing a rapport with jurors, educating jurors on issues and legal principles they will confront in the case, and—first and foremost—finding out what they think.

But some attorneys spend too much time using questions to argue their case. Attempting to persuade potential jurors on the righteousness of your cause shouldn’t be a goal of voir dire. Here’s why:

• In the time span of a trial you are unlikely to sway anyone to your side who is close-minded to your point of view.

• You may cause the unfavorable jurors (whom you need to identify) to stop providing information to you.

• Most importantly: You won’t find out the information you really need to know.

The critical task in voir dire is not to alter jurors’ beliefs, but to discover what they believe. Only then can attorneys make informed peremptory strikes.

The notion that selling one’s case must begin in voir dire originated with early jury studies in the 1960s. Researchers concluded that jurors begin to form fixed opinions during voir dire and, by the end of opening statements, a huge percentage have already made up their minds. The logical conclusion, then, was to begin advocating one’s cause right away, including during voir dire.

Critics (and later research) pointed out that those early studies had an important flaw: They did not consider pre-existing attitudes and how those affected the formation of jurors’ opinions. In all likelihood, jurors in these studies made up their minds so quickly due to biases they acquired long before they stepped into court.

Those pre-existing attitudes or beliefs—particularly those shaped by jurors’ personal experiences—are very difficult to change. Voir dire is best used to explore those biases rather than attempt to change them.

So what to do with limited time? Make sure you cover what’s pertinent to the particular case, rather than relying on the standard one-size-fits-all questions.

Run over the story of the case in your mind, listing all the important elements that will be presented. Is there a contract involved? A delayed diagnosis? A gun? A foreign-born client? A promotion denied? A defective product? A broken promise? A warning ignored? An abusive boss?

 Crafting your questions

You can and should ask jurors directly for their opinions on these topics, but, to be most effective, you must also ask about the experiences they have had that shaped their opinions and about their habits or behaviors.

Craft your questions by first considering what experiences might jurors have had that bear on these issues and what behaviors they might engage in that would tell you something about their attitudes on these topics.

For example: Have they ever had a situation where they wished an agreement had been put in writing, but wasn’t? Do they always read the fine print before signing a document? Do they go out of their way to buy American-made products? Ever written a letter to complain about a product?

Then tackle the legal elements of the case for your side and the other side. This should include causes of action, defenses, or, in a criminal case, the elements of the crime. Again, consider what related experiences jurors may have had and what type of behaviors might reveal their attitudes.

If you go through this exercise, you will have included the essential questions you need to ask to gather information. You will also have educated jurors on what they can expect the case to be about.

If there are particularly thorny or sensitive issues in your case, bring them to the attention of the judge before the day of trial. Explain why these issues might be a problem and how you’d like to address them. When judges are presented with specific requests, rather than a general “we just need more time,” they may be willing to go along.

Come prepared with two lists, one shorter and one longer. One should contain the most essential questions for your panel that must be covered in the event your time is cut short. The other can contain those quirky questions (such as “whom jurors most admire”) that you’d love to ask if time—and the judge’s patience—permits.

This article is reprinted with permission from the March 30, 2010 issue of the Fulton Daily Report © 2010. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

By Trisha Renaud, Special to the Daily Report

The search for bias is at the heart of every lawyer’s mission when facing a panel of prospective jurors.

Armed with lists of voir dire questions, attorneys hope to coax jurors into revealing enough information to identify who among the panel are dangerous for their client. Some jurors may dislike all plaintiffs while others are distrustful of big corporations. Then there are those who are immediately repulsed by anyone charged with a crime.

When the case involves issues that touch on race or ethnicity, lawyers know that uncovering such bias is more difficult. It is the rare juror who will admit prejudices, particularly in a courtroom in front of a crowd and a judge. And even those jurors willing to discuss their biases are usually unable to accurately gauge the depth of their feelings.

Social scientists tell us that when it comes to bias, matters are complicated.

When prospective jurors say they think people who file lawsuits are greedy, police are corrupt or women are ruled by their emotions, they are revealing one type of bias. Explicit bias consists of those attitudes a person is aware of and can identify, even if the person doesn’t recognize them as bias.

Yet even the most honest and self-critical individuals can go only so far with self-assessment. They won’t tell you about an entirely different type of bias, known as implicit bias, for the simple reason that they can’t. Implicit bias exists outside the conscious mind, beyond our awareness.

Implicit bias consists of unconscious associations that are the product of culture and life experiences. Social scientists have spent the past decade studying implicit bias in all its forms and developing ways to measure it.

Researchers at Harvard University’s Project Implicit have developed the Implicit Association Test (IAT).

Since 1998, the IAT has been taken online by some 4.5 million people.

The IAT works by measuring the reaction time a test taker uses to make certain associations. Such tests begin simply. In the version of the IAT that measures bias toward African Americans, the test (which can be taken online at implicit.harvard.edu/) works this way:

Subjects are asked to classify sets of words and images as quickly as possible. They must use the “e” and “i” keys on their computer to correspond to the left and right respectively. They are instructed to hit the left key when a black face appears and the right key when a white face appears. Then the same procedure is repeated using two sets of words. Subjects must hit one key for “good” words such as joy, wonderful or happy and another key for “bad” words such as evil, horrible, failure and nasty.

In the next stage, the words and images are combined. Test takers are instructed to hit one key when they see a white face or “bad” word and the other key when they see a black face or “good” word.

Finally, the associations are reversed: for either white faces or “good” words, subjects hit one key, and for black faces and “bad” words, they hit another.

By measuring and comparing the response times, the IAT will reveal a slight, moderate or strong preference for whites or blacks, or little to no preference. This response time difference occurs because associations that are more difficult for the mind to make take longer. Generally white test takers are faster at associating positive words with white faces than associating positive words with black faces.

Other versions of the IAT measure bias against the elderly, homosexuals, the disabled or associations between gender and careers, and between gender and science.

Project Implicit research has found that implicit bias is widespread. More than 80 percent of test takers show bias against the elderly as compared to the young and 75 percent to 80 percent of whites and Asians show implicit bias in favor of whites over blacks.

Of all the researchers’ findings, one conclusion is particularly important for trial lawyers: Implicit bias very often predicts behavior. As might be expected, persons with higher implicit bias more often engage in discriminatory acts.

Further, according to research published earlier this summer, implicit bias is a much better predictor of behavior than a person’s own self-assessment. This conclusion was based on a review of the results of 184 different studies that used the IAT.

Obviously, lawyers don’t have tools like the IAT when it comes to jury selection. Nonetheless, some familiarity with social science research on bias can be helpful to attorneys both in voir dire and during trial.

• People can’t reliably assess their own bias.

The limits of self-assessment may be obvious to many lawyers, and social science bears this out. Even the most soul-searching jurors simply don’t realize what attitudes linger in their unconsciousness.

• Deal with the biases you’re worried about during voir dire.

While voir dire can’t detect all bias, the nature of the questions you ask can affect jurors’ subsequent judgments. Some studies have concluded that the simple act of bringing up those biases relevant to your case can increase jurors’ open-mindedness and prime them to be sensitive to the issue.

• Friendships are important.

There is evidence from studies that individuals who have close friendships with someone of another race or ethnicity have less implicit bias toward that group. Recent polls indicate the same may be true of anti-gay bias. So ask prospective jurors about their ties with those who are different from them.

• Observations of interactions between potential jurors can be misleading.

A recent study concluded that whites don’t show implicit bias toward African Americans who are part of their same group. That group might be a sports team, a club, a corporate department-or it could be a jury panel. Group bonds of this type can be formed in minutes, or in the time prospective jurors spend waiting before they enter the courtroom. Their friendly interactions do not necessarily mean, for example, that white jurors won’t be biased against your African-American client. The diminished effects of implicit bias will not apply to African Americans who are not part of the “group,” regardless of how well jurors of different races or ethnicities appear to get along.

• Use every opportunity to provide jurors information that counters their stereotypes.

Research indicates that exposure to people who differ from stereotypes can mitigate the effects of implicit bias. Make sure the jury becomes aware of all the ways your client or witness is different from any stereotypes. You probably can’t eliminate all bias from your jury, but you can reduce its impact.

• Diverse juries can mitigate the effects of bias.

A 2006 study using mock trials found that whites who served on diverse juries were more open and receptive to discussing issues of racism than whites on all-white juries.

• Learning about prospective jurors’ behaviors and experiences is the best way to evaluate their bias.

Bias is shaped by experience. When developing voir dire questions, think of all the experiences a juror might have had that could contribute to a prejudice or a stereotype. Then, consider all the ways that someone with a particular bias might act.

• Ask for a commitment.

Once you’re near the end of speaking with a juror, ask for a commitment that he or she will do their utmost to be fair. Prime them to fulfill their civic duty. Then remind them of their promise gently when you address the panel in opening statements and closing arguments.

__________________

The April 22 Jury Watch column discussed an Ohio murder trial in which three jurors conducted home experiments.

Defendant Ryan Widmer was found guilty of drowning his new bride by holding her head down in the bathtub. After the trial, several jurors acknowledged experimenting at home to see how long it took to air dry after bathing and discussing their findings during deliberation.

Last month, a Warren County judge granted Widmer a new trial, finding that the verdict may have been based in part on the improper home experiments.

This article is reprinted with permission from the September 2, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

The topics addressed during voir dire of prospective jurors vary from case to case, but one area of questioning is nearly universal: prior jury service.

Whether the case is civil or criminal, tort or felony, lawyers always want to know which panel members have experience as a juror.

Georgia judges typically permit questions to be posed such as these:

• Have you ever served on a jury?

• Was the case civil or criminal?

• Were you the foreperson?

• Without specifying what that verdict was, did your jury reach a verdict?

• Is there anything about your prior jury service that would make you unable to be fair and impartial in this case?

Sitting as a juror affects an individual’s future attitudes toward the justice system in a number of ways.

During their service, jurors learn the various players in the court system and their roles, gain familiarity with courtroom procedures and acquire at least some knowledge of legal concepts. Jurors also gain experience listening to and evaluating evidence and participating in deliberations to reach a decision.

Some jurors come away from their courtroom time with a newfound respect for the justice system and with a sense of civic responsibility fulfilled. Others, however, may find the process tedious or trying, the deliberations frustrating or troubling or the entire experience disillusioning or haunting.

Regardless, lawyers always want—and need—to know about prospective jurors’ past jury service. Many attorneys believe that repeat jurors tend to side with the defense in civil cases, and with the prosecution in criminal cases. They also expect that repeat jurors are more likely to be leaders on the jury and that a juror who has been a foreperson once stands a good chance of being chosen foreperson again.

Is there evidence—more than anecdotal—to support these widely held beliefs?

To answer that, we should look to the results of studies of juror behavior. The available research on the effects of prior jury service on verdicts, which includes both field studies (interviews with jurors or statistical evaluations of court records) and laboratory experiments (simulated trials or case assessments using undergraduate students or volunteers) were conducted in the 1980s. They focus solely on criminal cases.

Of those studies, most found that repeat jurors in criminal cases are more likely to vote to convict. Some studies also indicated that juries with a higher percentage of repeat jurors are more likely to convict.

One laboratory study found that repeat jurors’ votes were influenced by two factors: the seriousness of the previous case as compared to the second case, and the comparative strength of evidence.

The studies also revealed that repeat jurors are more likely to become forepersons—especially if they have served in that capacity previously.

Obviously, these findings are generalizations, but they underscore the need for criminal defense lawyers to scrutinize those who have previously served as jurors in a criminal case and to consider the number of repeat jurors who may wind up on the new panel.

One category of repeat jurors warrants even more scrutiny: those jurors who learned after the verdict that information had been hidden from them during trial.

Prior criminal records, evidence seized from an illegal search, evidence of other litigation or any irrelevant and prejudicial information is often excluded from trial for sound legal reasons. Yet one of the attorneys, or sometimes even the judge, often will reveal that information to jurors during post-trial discussions in the jury room.

Sometimes this disclosure will reinforce jurors’ beliefs in the righteousness of their verdict, while in other cases, it will call into question their just-rendered decision. In either case, it will inevitably change how they assess future cases. These jurors will feel duped or tricked. Next time around, they are likely to assume that secrets are being kept from them again, leading them to factor that assumption into their assessment of the evidence.

In short, revealing this information to jurors after trial—described by one public defender’s blog recently as the “post-trial reveal”—poisons the pool of future jurors.

Last month, a California juror who served on a civil trial described just such a situation on her blog: “[T]he things I’ve found out from one of the attornies [sic] since the trial has been over has seriously damaged my sense of justice and fair play. The judge did not let in several things that, knowing now, would have changed the outcome.”

Another juror’s blog reveals a similar story: “After the verdict, evidently, a judge can be more free with his opinions. He came back to the jury deliberation room and without actually saying the words, let us know that we had made a wise decision. He also told us that this was the defendant’s fifth offense.”

And finally, this juror, whose panel had just found a man guilty of raping a child, wrote that both the judge and the prosecutor shared some new information with jurors after the verdict. “Turns out this sick bastard has two more pending rape charges. … The judge also assured us there was nothing about the case that could be appealed successfully.”

The post-trial reveal can also be an ethical violation.

State Bar of Georgia rules provides that after a jury is discharged, a lawyer “shall not ask questions or make comments to a member of that jury that are calculated to harass or embarrass the juror or to influence his actions in further jury service.” A violation of the standard is punishable by a public reprimand.

The American Bar Association’s Criminal Justice Standard 3-5.4 contains similar language directed at prosecutors who speak with jurors after a verdict.

A few additional voir dire questions about prior jury service may help lawyers spot those repeat jurors who feel they been deceived in the past. Ask if they learned anything during—or after—their prior jury service that might affect their feelings toward either side or toward jury service in the current case.

Since Jury Watch’s column of Feb. 13 about jurors on the Internet, the problem has mushroomed to the point of derailing, or threatening to derail, case after case.

In Florida, a federal judge declared a mistrial in a drug case after discovering that nine jurors had done Internet research on the case. A judge in Philadelphia considered, but rejected, a request for a mistrial based on one juror’s Facebook postings during the trial of a political corruption case. And an Arkansas company tried unsuccessfully to set aside a $12.6 million verdict because a juror had sent multiple Twitter messages on the case during trial.

In response, some courts are instituting measures to address the problem.

Rhode Island recently revised its juror handbook, according to the Providence Journal. The new guide will warn jurors against conducting Internet searches, participating in chat rooms or posting on blogs about the case. Jurors will also be told they may not discuss the case “either personally or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communication.”

The Michigan Supreme Court went even further, issuing new jury instructions. Beginning Sept. 1, judges must instruct jurors not to use cell phones or any other electronic device during a trial or in deliberations. That includes all electronic communications, including text and Twitter messages.

This article is reprinted with permission from the July 13, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Jury Watch: Economic voir dire
Identifying jurors feeling worried, frantic or overwhelmed by the economy is crucial in these times
By Trisha Renaud, Special to the Daily Report

During the Great Depression, jobless Atlantans went begging for jobs anywhere they could find them. One possible place, according to “Living Atlanta: An Oral History of the City,” by Cliff M. Kuhn, Harlon E. Joye, E. Bernard West and Michael L. Lomax, was the county courthouse.

Every Monday morning, destitute men headed to court, hoping that an extra juror might be needed for some trial and that they could earn a bit of pay.

Today, despite the reeling economy and mounting job losses, there are no volunteers for jury duty waiting on the courthouse steps.

At courthouses around the country, it’s getting harder and harder to find jurors to serve. Requests for hardship excuses from jury duty are way up, according to numerous news accounts.

That’s not a surprising development, given the pitifully low pay given jurors in many jurisdictions.

Potential jurors are anxious, stressed and sometimes angry about their financial straits. Some are preoccupied with worry about losing their jobs should they be absent for more than a day or two. Even when assured that it is illegal to fire an employee for performing jury duty, they still fret that they’ll be targeted in the next round of layoffs. As for small business owners or the self-employed, the last thing they want to hear is that they must lose out on business while on a jury.

According to a March 9 Gallup poll, 38 percent of workers said they had worried about money just the previous day. Another Gallup poll issued March 27 found that nearly one in four Americans reported that they were worried about being able to pay their monthly bills over the next six months.

Certain age groups feel particularly vulnerable in this economic climate, according to a May 14 Pew Research Center survey. Adults 65 and older, many of whom have already retired, were less likely to report that they had cut back on spending, lost retirement funds or had trouble paying bills. In contrast, adults between ages 50 and 64 lost more retirement funds and were the most anxious about being able to retire. Younger adults (under 50) experienced more job loss than other age groups, but were the most optimistic about the future.

Assessing jurors in today’s hard times calls for a careful-and considerate-voir dire.

The legal blogs are full of speculation about whether plaintiffs or defendants stand to benefit the most from this shaky economy, but no hard data exists to substantiate either claim. Moreover, each case has its unique facts, parties and issues.

But this much can be said: Whether or not your case involves damages, you’ll want to identify those jurors who are feeling worried, frantic or overwhelmed by events out of their control.

The anxious or angry juror may often be intolerant and judgmental, looking to place blame rather than weigh out the pluses and minuses of each side’s case. The preoccupied juror, whose mind will be elsewhere, may be prone to let others make decisions for her. A careful and well-designed voir dire should provide insight as to which side those stressed-out jurors may blame or how strong a juror that distracted jobseeker might be.

If you have looked to a particular type of juror in the past as one who is typically favorable to your side, you should look again in the light of today’s economy. While lower income earners and minorities have taken the hardest hits lately, nearly all sectors of society are feeling some degree of economic pain. With the changing economy comes changes in jurors’ circumstances and attitudes.

If your client is an employer or corporate executive, the need for thorough voir dire is critical. Trust in big business, particularly large financial institutions, has plummeted.

A February Harris poll found that an astonishing 71 percent of Americans believe most people on Wall Street would break the law if they thought they could make a lot of money and get away with it. The same poll found that 87 percent believe that Wall Street needs more regulation.

But polls only give an overview. Your job in voir dire is to get at each juror’s situation and how it might affect their service.

Doing so takes genuine empathy for jurors’ situations. A considerate voir dire does not belittle jurors’ concerns, but is respectful of them. If you have a relative or acquaintance who has lost a job, or is fearful about retirement, they may have some insight to offer. And acknowledging to jurors that your own friend or relative has troubles may encourage jurors to be honest about their own situation.

Pretrial research such as focus groups or surveys will also help you get a read on your jury pool’s attitudes in today’s economy.

Recently, lawyers defending former Monster Worldwide Inc. executive James Treacy on securities fraud charges, had trial consultants conduct a survey to determine community attitudes toward corporate executives. The results? Nearly three out of four people agreed with a statement that the economic crisis was caused by careless and greedy senior corporate executives. Nearly half agreed that, if the government accuses such an executive of committing financial fraud, that executive probably did it.

Treacy’s lawyers, in a motion, cited the results to argue that more extensive voir dire, including a written questionnaire, was needed to ensure a fair and impartial jury.

Last, but not least, make sure that you don’t waste the time of your jurors, lest their private lives-and not your case-occupy their thoughts. Streamline your presentations and get to the point. Jurors will appreciate your efforts to minimize their stay in the jury box.

This article is reprinted with permission from the June 5, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

By Trisha Renaud

 An Ohio murder conviction could unravel with the discovery last week that three jurors conducted home experiments. 

In Alaska, a murder conviction against four young men hangs in the balance at that state’s Supreme Court after the revelation that jurors walked outside during deliberations to determine how far away an eyewitness could recognize someone. 

In New Jersey, one juror was dismissed and nearly caused a mistrial in December after driving to the scene of a fatal shooting and timing how long it took to drive from one point to another. 

In Albany last fall, a murder trial was halted after one juror set up his own ballistics tests at home, shooting into a pizza box and bringing the spent ammunition to show the rest of the panel. 

And in the UK last year, a jury was dismissed in a manslaughter trial after one panel member not only visited the crime scene, but took photographs, made measurements and submitted a list of 37 questions to the judge.

 Do-it-yourself jurors can create havoc. 

Despite being instructed to consider only the evidence presented to them in the courtroom and to apply their life experience and common sense, some unsatisfied jurors apparently can’t help themselves. They have burning questions and they want answers. 

When faced with an intriguing mystery, jurors, like most of us, want to figure it out. We hate unanswered questions. We worry about untidy details that don’t seem to fit. 

That desire for the perfect explanation, one that evokes that “aha!” moment, is probably a product of our popular culture. For most of us, the mysteries we encounter are solved in 60 minutes of a television show, wrapped up in two hours at the movie theater or revealed after a few days spent burrowing into a crime novel. 

But unlike TV, trials will sometimes leave jurors wanting. They may be told that a particular piece of evidence just can’t be explained. They may be suspicious of the explanations they are offered. And sometimes, jurors come up with questions that neither side has considered.

 In recent years, more and more states have begun to allow jurors to submit written questions for witnesses in civil cases. The decision to allow juror questioning in any given case is typically left up to the trial judge, who will rule on whether the questions are proper. However, many courts have been understandably reluctant to do the same in criminal cases primarily because of concerns that doing so would improperly shift the burden of proof away from the prosecution.

 Questions were probably inevitable in the recent murder trial of Ryan Widmer in Warren County, Ohio. (Ohio gives judges in criminal cases the discretion to permit juror questions, but news accounts give no indication that the Widmer jurors could or did submit questions.) Widmer was accused of drowning his new bride of four months by holding her head down in the couple’s bathtub. 

According to the Cincinnati Enquirer, Widmer told police he had found his wife unresponsive in the tub, pulled her out and called 911, a call that lasted six-and-a-half minutes. 

When police arrived, they found Sarah Widmer’s body dry except for her hair. The scene around the tub was also dry. 

Defense experts testified that it was impossible to conclude with any certainty that her death was a homicide. They said she could have drowned after suffering a seizure or undiagnosed heart ailment. Friends of Sarah testified that she frequently complained of headaches and fell asleep in unusual places, including the bathtub, according to the Enquirer.

 One particular defense witness may have piqued jurors’ interest. While testifying on cross, pathologist Michael G. Balko mentioned that he had recently conducted an experiment related to the case: He timed how long it took his skin to dry after a shower. It took seven minutes, he testified, the newspaper reported.

 Widmer was acquitted of aggravated murder but convicted of murder and sentenced to 15 years in prison.

 Now, a juror’s affidavit, filed just days after the verdict, could undermine the result. Juror Jon Campbell said on the first day of deliberations, one female juror told the others she had tried to duplicate Balko’s experiment. It took her 12 minutes to dry after her shower. The next day, another juror reported that after showering, she lay on the bedroom carpet and it took her more than 15 minutes to dry. Still a third juror reported trying the home experiment. The result: eight minutes to dry.

 A fourth juror said he had checked his tub several hours after bathing his child and it was still wet.

 Campbell’s affidavit said he believed the experiments had influenced several jurors’ votes and that he had a “moral duty” to report what had happened.

 Six members of the panel have now been subpoenaed to court for a hearing Friday on whether Widmer will get a new trial because of the juror experimentation. 

Do-it-yourself jurors probably aren’t deliberately trying to sabotage a trial or brazenly flout judicial instructions. They just believe they need certain information to reach the right verdict. 

The Press of Atlantic City reported that the New Jersey juror who conducted a timed test-drive at the crime scene told the judge that he was “trying to make an honest decision. I’m making a decision on somebody’s life here.” 

In many cases, including some of those described above, the questions do-it-yourself jurors want answered are perfectly permissible: How long did it take to drive? How far away was it? Yet those questions weren’t answered during trial.

 Anticipating jurors’ questions is a critical part of attorneys’ trial preparation. Knowing what puzzles, intrigues and worries jurors and addressing those issues could go a long way toward curbing jurors’ outside experiments. 

Most courtroom veterans have a story or two about an unanticipated question that stymied a jury. Yet surprisingly few lawyers routinely engage in the very research that would help them anticipate those questions. They fail to conduct focus groups and mock trials.

 In these sessions, lawyers hear from citizens chosen to reflect the demographics of the jury pool. They hear how participants react to the case, find out what issues are important to them—and discover what questions they have about the evidence.

 It is not unusual for focus group participants to raise new questions, issues or concerns that attorneys had either overlooked or dismissed as unimportant. Viewing the case through the eyes of everyday citizens—who are not of a legal mind—can be an eye-opening and invaluable exercise.

 Conducting focus groups and mock trials early enough in the process of preparing for litigation allows attorneys to adjust their presentations and prepare to address jurors’ concerns, to answer those nagging questions.

 Doing so just might avoid some extracurricular juror experiments as well.

This article is reprinted with permission from the Apr. 22, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

Besides ‘CSI’ and ‘Law & Order,’ lawyers need to ask prospective jurors if they watch new show, ‘Lie to Me’

By Trisha Renaud

It has become routine for lawyers in criminal trials to quiz potential jurors about the TV shows they watch. Both sides want to identify those who regularly watch crime shows, particularly the “CSI” series that deals with forensics.

Many jurors indicate they watch such programs. Their responses seem to indicate that “CSI” runs a close second to the “Law & Order” reruns that now air nearly round-the-clock.

But a new show has entered the picture recently, one that lawyers in both criminal and civil trials may want to raise with jurors during voir dire.

“Lie to Me,” a Fox series airing on Wednesday nights, features British actor Tim Roth as Dr. Cal Lightman, a deception expert who catches liars by reading their fleeting facial expressions and body language.

“The truth is written all over our faces,” is the show’s tagline.

“Lie to Me” is based on the lifetime of work by one of this nation’s most respected psychologists, Dr. Paul Ekman, who has signed on as a consultant to the program.

Ekman is the author of numerous books on nonverbal communication and detecting deception via body language. He is particularly known for his expertise in detecting a person’s true emotions through facial clues known as microexpressions.

The show got off to a roaring start. According to Nielsen, the January premiere drew more viewers than the return of the popular “Lost” series.

The show’s concept of catching liars—and thereby solving crimes—by studying freeze frames of faces, quick gestures and tonal inflections, is intriguing. “Lie to Me” also has an interactive Web site (fox.com/lietome) with games that allow anyone to test their talents at lie detection and learn a bit about body language.

Ekman keeps a watchful eye on his television alter ego. He writes a regular column on the “Lie to Me” Web site, using video clips to explain the science behind Lightman’s actions, and also what the fictional psychologist occasionally gets wrong.

So what’s the issue here? In particular, what’s the issue for jurors? The answer lies both in the nature of microexpressions and in the nature of people.

First, let’s look closer at microexpressions. According to Ekman’s Web site, “Microexpressions occur when people try to conceal or repress how they feel. While most facial expressions last for a few seconds, microexpressions are much faster, lasting only about 1/25th of a second. Research has found that most people say they are not able to see microexpressions.”

Nor can most people accurately detect a lie, according to Ekman.

In a 1991 study reported in American Psychologist, Ekman and a colleague tested the ability of 509 people, including federal and state law enforcement officials, polygraphers, psychiatrists, judges and others to determine if someone was lying. They discovered that only Secret Service agents performed better than chance.

More recently, Ekman told The Washington Post that he had tested 15,000 people, encompassing nearly every profession, to assess their ability to detect lies. “Less than 1 percent are any good at it,” he reported. “Most people are only at about the level of flipping a coin.”

So bottom line, viewers of the show won’t become experts at spotting a lie, no matter how avid a fan they become.

Moreover, people tend to misinterpret the meaning of certain body language. Ekman told the Post that frequently happens with certain personal grooming-type actions, such as biting the fingernails. People are certain these movements, called “manipulations,” are evidence of deception, when in fact these manipulations, have little meaning.

The possibility of such errors is Ekman’s main concern about the show, he told the Post. “We don’t want jurors thinking that because they saw ‘Lie to Me,’ that they can tell when someone on the stand is lying.”

So how much does television really impact jurors?

Over the past few years, much has been said about the so-called “’CSI’ effect.” Prosecutors complain that jurors increasingly are demanding unrealistic levels of proof, while defense lawyers worry that jurors will accept expert witness testimony without question.

Prosecutors have been the most vocal, offering up anecdotes to show that “CSI”-influenced juries are increasingly acquitting clearly guilty culprits because some inconsequential forensic evidence has not been produced or tested.

But despite such anecdotes, there is no evidence that “CSI” viewing is causing a wave of acquittals.

A 2006 survey of 1,027 summoned jurors, conducted by a Michigan judge and two Eastern Michigan University professors, made several findings. Among them:

• 46 percent of jurors expected to see some scientific evidence in every case.

• Frequent “CSI” viewers had higher expectations for both scientific and non-scientific evidence, such as eyewitness testimony, than non-“CSI” viewers.

• “CSI” viewers were more likely than non-“CSI” viewers to convict without scientific evidence if eyewitness testimony was presented.

• The data showed no statistical relationship between “CSI” watchers and those who insisted upon some scientific evidence in order to convict.

The study’s authors concluded that broader, technological changes in society may well account for the changes in jurors’ expectations of scientific evidence, much more than the viewing of a particular television program.

Nonetheless, television, like any other ubiquitous part of the culture, does have an effect on how people think and make decisions.

For anyone trying a case, the key must be juror expectations—learning through voir dire just what those expectations are and whether, in a juror’s mind, they rise to the level of a requirement.

In many cases, prosecutors, hoping to satisfy those expectations, have begun calling witnesses to explain why a particular type of scientific evidence could not be presented at trial.

And since the issue of evaluating a witness’ credibility lies in the hands of jurors in every trial, and part of such evaluation always includes a witness’ demeanor, whether or not a juror believes that a television show has given them some special insight into evaluating the veracity of a witness should be fair game for voir dire.

So ask your jurors if they watch “Lie to Me.” Ask them what they like about the show. Then ask them what they’ve learned from the show. You might learn something important.

This article is reprinted with permission from the Mar.10, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

By Trisha Renaud

Jurors have always had certain itches. 

Some found it hard to resist searching newspapers to see just what they weren’t being told about the case before them. Others would insist on finding a better definition in the dictionary for that legal term that had become a sticking point in deliberations. Still others simply couldn’t refrain from sharing details of the case with a friend or family member. 

Now, in the era of the smart phone and BlackBerry, satisfying those itches is easier than ever. Research is a breeze on the Internet, and today’s jurors are as likely as a lawyer to be Internet savvy. 

Judges now routinely admonish jurors not to research the case on the Internet, but they may want to add another admonition: Don’t blog or tweet either. 

Every day, potential jurors—and sometimes sitting jurors—are blogging. 

See for yourself. Search the blogs using a Google alert for the term “jury duty.” You will find jurors out there chronicling their adventures at the courthouse on blogs. 

Some write of their irritation at having to rearrange their lives to show up for jury duty. Some exchange ideas with friends about ways to get out of serving. Others blog about how excited they are at the prospect of getting picked. 

Once they arrive, they sometimes keep blogging live. They write about how they are herded around the courthouse in lines that remind them of grade school. They write about the hours of boredom in the jury assembly rooms. They write with great relish about where they went for lunch and what they ate. And they write about the seemingly bizarre questions they are asked during voir dire. 

And some keep right on blogging—during trial. 

One juror recently posted this to his blog: 

“Hey guys! I know jurors aren’t supposed to talk about their trial, but nobody said they couldn’t LIVE-BLOG it, right? Am I right or am I right?!?” 

Imagine if you knew one of the members of your jury pool had posted a comment like this one, written this past summer from a jury assembly room: 

“Dear defendants …  

“Plead guilty. Trust me, it’s the way to go. …  

“In this room somewhere in the realm of 60 or so angry men and women want to go home. They are cold hearted, bored and just itching for a fight. … 

“So consider the guilt plea. You’re probably guilty anyway.” 

Or this one? 

“I ended up getting picked for a civil case that couldn’t possibly be more tedious. A person vs. a company, and all the evidence is contract legalese blah blah blah. Bob Loblaw. They expect the trial to continue all effing week. The word ‘tax’ has already been uttered in excess of a hundred times. 

“Sigh.”

One recent civil juror decided the judge’s instructions prohibited him from discussing the facts of the case on his blog, but didn’t prohibit him from describing all the players in the case, from the witnesses to the lawyers.

Then there’s the juror in Lancashire, England, who was recently booted off her panel after posting details of the child abduction-sexual assault case on Facebook and inviting her friends to post their opinions. “I don’t know which way to go, so I’m holding a poll,” she wrote. Her Internet appeal was discovered when an anonymous tipster telephoned the court.

 New blogs turn up every day, while social networking sites, once the province of teenagers, are exploding in popularity. A recent poll from Pew Research Center found that the number of adult Internet users who have a profile on a social networking site such as MySpace, Facebook or LinkedIn has quadrupled in the past four years, up from 8 percent to 35 percent. 

Of those ages 18 to 24, 75 percent are on social networking sites. More than half—57 percent—of people (read that as potential jurors) ages 25 to 44 have their profile posted. 

Clearly, the technological times are rapidly changing for litigators. Those who don’t use the tools of the Internet to assist in selecting a jury are missing out on a wealth of information available with a few clicks of a mouse. Blogs or Facebook pages can yield valuable insights into jurors’ thinking—what’s important to them, how they feel about themselves and their life. 

The biggest obstacle is finding the time for such research, since in most cases jury lists are not available until moments before the panel files into the courtroom. Absent the time afforded by supplemental juror questionnaires completed in advance, lawyers may need a trial assistant to help with simple Internet searches. Jury consultants can be invaluable in evaluating the information out there. 

But what should be done about jurors who hop on the Internet or blog? 

First, assume your jurors are on the Internet. As much as you want to know about them, they want to know about you, your client and your case. Make sure you know what they might find should they search. 

Next, ask your jurors during voir dire if they regularly write online, whether on their own or someone else’s blog, on Facebook, MySpace or any similar social networking site.  

No lawyer would hesitate to ask jurors if they had published a book, particularly an autobiographical one. So why not ask about blogs? What are they, if not online journals published for the world to see? What is a LinkedIn profile but an online résumé? 

Ask jurors about the content of their online postings. What’s the name of their blog? What do they write about? Have they written anything about their feelings about jury duty? 

Ask the judge to help jurors understand why they can’t read—or write—on the Internet. Simply telling jurors isn’t always enough. Judges can help by crafting instructions that explain why: that court rulings in this case, as in every case, circumscribe how trials should proceed and what evidence should be presented, and all are designed to ensure a fair trial. When jurors undertake independent research, they may potentially bring irrelevant or prejudicial or even inaccurate information into the process that, despite their best efforts, might impact the fairness of the proceeding. Similarly, judges could explain that when jurors blog about the case during trial, they are not only crystallizing their own opinions prematurely, they are effectively engaging in a conversation about the case. 

Monitor the Internet during trial. Most jurors follow the rules, but there are always exceptions. If one of your jurors is posting about your trial, you need to know. 

A recent civil case serves as a good example. No doubt, the lead plaintiff’s attorney would have wanted to know that a blogging juror was describing him as “The Pacer” and writing that he was boring and has a “surly grandpa look.” The juror described the lead attorney’s associate as the “Sad Puppy Face” who looked like he “just peed on the carpet and knows he is [in] trouble.” 

And if you were the criminal defense attorney and this was one of your jurors, you’d want to know about this juror’s blog posting: 

“I’m still a little surprised that I was picked though. I’m hoping it’s interesting (although, I’m not sure it will be). I wish I could knit during (I don’t think I can). And I have no idea how I’m going to sit still, in one place, all dang day. Oh, and the defendant scares me.” 

This article is reprinted with permission from the Feb. 13, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.