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Commentary: Beating the fairness out of jurors: How judges get it wrong

Voir dire: “to speak the truth.”

A list of questions that one hopes to highlight the most dangerous (or biased) jurors so that each party can get a fair trial.

That’s all terrific, and depending on where you try your case and who crafts the questions, you might actually achieve that goal, but for the most part, voir dire has become a less-celebrated part of trial than, for example, opening statements and witness examinations, in order to seat a panel as fast as possible.

In fact, in many jurisdictions, voir dire consists of judge-asked questions, with few exceptions.

Judge-conducted voir dire, as well as any follow-up questioning, tends to bully and guilt prospective jurors into changing their answers. Judges are intimidating; they can’t help it sometimes. They wear black robes, people stand when they enter the room, they are announced loudly, they are often stern with counsel, and a host of other things firmly put them in charge.

Before I get hate mail, let me state that I know not every judge is stern. Not every judge demands the gallery stand. Not every judge has a scowl on his or her face. But to prospective jurors who have never been in a courtroom, a trial is all new and unusual, full of pomp and circumstance, unfamiliar proceedings, big words. All of that contributes to a sense of anxiety, even if the judge appears warm and likeable.

It might go without saying, but I will say it anyway: Jury selection is really de-selection. Each attorney wants to dismiss the jurors who will be most dangerous to the client or case. Sometimes the dangerousness comes from a prejudice against the party, sometimes it comes from a negative experience with a product at issue or a party, and sometimes it comes from a juror’s unwillingness to follow the law.

The point is that you can’t know unless you talk to the jurors. It rarely works to just “guess” which juror is the most dangerous. And with exclusively judge-conducted voir dire, counsel is often guessing.

The following are some real-life examples of judge-conducted questions to prospective jurors (note that these are usually how follow-up questions are asked. Judge-conducted voir dire is usually name, rank and serial number, with a handful of case-specific questions, so that when counsel moves to strike a juror for cause or a juror indicates an inability to be fair, the prospective juror goes to the bench and, for all intents and purposes, gets grilled):

• “You can be fair, can’t you?”

• “I will instruct you on the law and you will follow what I say is the law, correct?”

• “I know you said you might not be able to be fair, but the law requires a fair jury and I am sure you can be fair; am I wrong?”

• “This is a case between party A and party B. You heard the claims a few minutes ago, and you raised your hand that you could not be fair to one of the parties. Are you really saying that before you hear any evidence at all, you have made up your mind? You are not really saying that are you?”

• “You wouldn’t automatically favor one party over the other, would you?”

• “I understand you have a family member who had a bad experience with party B, but you could put those feelings aside, right?”

At that point, most jurors are practically sweating. They do not know what the consequences are if they “go against the judge” and convey how unfair they really would be. Bias and being unfair to one party is made to sound criminal, as if a person is defective for having certain experiences or feelings. It is not very often a judge truly explains that biased jurors simply aren’t best for the job.

Think of a referee for a sporting event. Is a diehard Red Sox fan the best person to umpire a playoff game in Boston? Jurors would feel better about expressing their true feelings if they knew it meant they simply were not right for the particular case, and perhaps they’d be better suited for another trial.

What are some ways in which judges could rephrase those same questions? First of all, they need to ask them in a way that does not give away the answer they want. How can the judicial system function properly if judges work to get prospective jurors to say they will be fair, as opposed to actually being fair?

Second, judges need to listen to a prospective juror’s answers and probe as to whether a conviction is a strongly held belief or something that’s either mild or irrelevant. If a juror says he doesn’t “think” he can be fair, inquire as to why he thinks that instead of implying there is something wrong with him if he can’t put whatever it is in his mind aside for the sake of the case.

Sometimes jurors legitimately cannot be fair and sometimes their anxieties about the trial process and potential outcomes (or punishments) cause them to think they can’t be fair.

Better questions:

• “What is it about your uncle’s negative experience with party B that makes you think you cannot be fair?”

• “Is your belief that all lawsuits are frivolous a strongly held belief or do you think you could still listen to the evidence in this case? Why do you have this belief/where does this come from?”

• “Although you indicated you might already be leaning in favor of one of the parties, do you think you would be open to hearing both side’s evidence before completely making up your mind? Why or why not?”

• “What did you mean when you said that you really did not think you could be fair to both sides after hearing the brief statement of the case?”

• “What is it about this case that makes you think you are not the right juror?”

The idea is not to bully or cajole a prospective juror into changing his position; rather, get to the underlying issues surrounding the reluctance to serve. If the prospective juror turns out to despise corporate defendants or has been in a lawsuit with the same company on trial, or there is some other impediment to “fairness,” let that person go.

An unbiased juror is a critical component of a trial. With a little forethought and revamping of some of the old favorites designed to whip through voir dire as fast as possible, valuable information can be uncovered, and perhaps a fair jury can be seated.

Julie Campanini is the founder and principal at Trial Insights. She can be contacted at A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.