Voir Dire and Seating the “Ideal” Jury
Wednesday begins the process of voir dire – roughly meaning ‘speak true’ – in which Judge Lynn Leibovitz and both legal teams will sort through the pool of seventy potentials to seat a jury of 12, with 4 alternates. (The alternates won’t know who they are, by the way.)
For those who’ve never sat on a jury, the process is fairly simple. Typically a pool of potential jurors is gathered and a brief questionnaire filled out. This is the initial screen to eliminate jurors clearly incapable of rendering a fair verdict. Individual questions from the bench follow – this is where potential jurors are quizzed on their ability to ‘speak and see true’, as it were.
However, Judge Leibovitz this week said there will be no questionnaire, preferring instead brief, direct questions directed to each juror. She’s pared down the long list of possible questions to three immediate screens: ability to sit on a two-month felony trial, potential bias against the defendants’ sexual orientation, and amount of coverage jurors have seen or heard about the case.
She’s also refined questions she’ll ask: juror’s gender and age, neighborhood, employment and professional experience. Defense questions – such as knowledge of certain medical or forensic practices – and prosecution questions will be asked as well. The judge’s exact working of the sexual orientation question has yet to be put into words.
Leibovitz initially allotted three days to seat a jury. Yet we know at least part of Friday will be taken up by the last pending motions – among them the challenge to Doug Deedrick and Robert Spaulding’s methodologies. Opening statements Monday? Perhaps.
But even if finished by Friday, picking a jury isn’t just a three day job. Try three months, more like.
The process, as seen from the inside by one who knows, after the jump.While we can’t state this as fact, it’s very likely both sides have already spent considerable resources on jury consultants. It’s common now for legal teams to spend months researching what sorts of jurors would be most sympathetic to their arguments, running focus groups, testing and refining narratives, and plotting out strategy for striking potential jurors. All while spending lots of money.
But don’t take our word for it.
“My mind set is that through pre-trial research, we have the ability to understand those certain factors that are going to influence decisions jurors are going to make throughout the trial,” says Dr. Marshall Hennington, founder and CEO of Hennington & Associates, one of the nation’s largest trial and jury consultant practices. “What we’re trying to do is factor out certain variables that are going to help our case vs. the ones that are going to hurt our case.”
Hennington is not a lawyer; he earned his Ph.D. in clinical psychology and is an experienced psychological counselor, a field he may well have stuck with were it not for his ‘a-ha’ moment.
“I got involved with this right after OJ,” says Hennington. “Essentially it was a no-brainer, in terms of what jurors were going to support him and the other individuals that were not. So I predicted what the outcome would be; I told my wife at the time that primarily African-American female jurors would be the best type of jurors for him and Johnny Cochran, and essentially I was right.”
Get the right jury and you can convict a ham sandwich. Get the wrong one, and guilty people are set free.
But beyond an attorney’s experience and intuition, there’s been no real consensus or evidence that any one particular type of juror will rule one particular type of way. In the end it seems to be a much more organic (if that’s the term) enterprise, meaning that the jury becomes something more than just its twelve pieces, but almost a decision-making entity unto itself. Which makes seated juries inherently unpredictable.
In high-profile cases it’s likely people’s lives and reputations are at stake – or many millions of dollars. With so much riding on the decision of twelve peers, neither side is likely to take shortcuts. Little surprise, then, that sooner or later, a new business would be born.
“When I first started, the field was pretty much wide open,” Hennington says. “Now you got every person you can imagine trying to get involved with this field because they think it’s easy money. It isn’t.”
Easy, probably not. But money…oh, there’s money. “Business is always good,” he notes of his firm’s practice in New York, Miami and Beverly Hills. Hennington & Associates offers the full gamut of services: community attitude surveys, focus groups, trial simulation, witness research…”the whole bubble” as he terms it.
So what factors determine how a juror will act? Hennington rattles off the list. “Attitudes, beliefs, opinions,” he says; “what they’ve put on the questionnaire, what their background and experience is, what they say during voir dire. Each case is different, each case has its own personality, just like each attorney does.”
Each legal team works to isolate its key arguments. They’re tested to see who they play well with, and who responds negatively. Refinements are made and a strategy is developed for choosing and striking jurors. “Now, I’m not gonna share with you what that strategy is,” says Hennington, “or typically what we do in order to effect change. But that’s what we do. What we are trying to do is factor out certain variables that are going to help our case vs. the ones that are going to hurt our case.”
Part of that strategy involves strikes. Each side will have 12 “strikes” – 12 chances to eliminate a potential juror. The unspoken part likely involves not only striking potential jurors that your side feels may be unsympathetic, but also occasionally striking others who may be too sympathetic to your opponent. It’s a high-stakes process.
Which brings us to this case. What variables might be at play for the defense, or the prosecution? Too difficult to say, Hennington says, given his only passing familiarity with its many complexities. But…
“…I will say this. That where there’s smoke, there’s fire, and that if the prosecution can have jurors who are highly suspicious of people’s motives, and also they question authority, and also believe that if these men actually committed this crime, then it’s not too unthinkable to believe they had ulterior motives for doing it…those are the types of juror that would be receptive to the message the prosecutor has to offer.
“For the defense, obviously people that are looking for hard evidence, people that are looking for a bombshell to drop that’s going to break open the case, those are the type of jurors the defendants would be looking for.”
–posted by Doug