In voir dire, I want to deselect a negative, biased juror using a challenge for cause. But, first, I have to discover of the juror's true beliefs which hurt my case. My challenge is to ask questions which make prospective jurors answer more honestly about their beliefs relevant to the case as opposed to defaulting to the acceptable "I can be fair" answer. For example, if I simply ask “are you able to be fair,” few jurors will tell me “no.” Some prospective jurors even know that they cannot be fair but will not admit to it--wanting to believe they can be fair ('denial") or avoid any embarrassment in front of jurors. If I ask poor questions which allow the juror to slip in to the "I can be fair" mode, then my challenge for cause is likely doomed. Remember also, many jurors suffer from the desire to be socially accepted--“the Good Citizen Juror.” When asking voir dire questions, I don't want to either ask a question or send a message to the juror that "yes" is the socially acceptable answer. I don't want to know why the juror can be fair, I want to know why he can't be fair. Indeed, to discover a prospective juror's preconceived beliefs about the issues in my case, I want to avoid questions which put the juror on the defensive about the ability to be fair and set aside his personal beliefs--negative as they may be.
In this Blog, I want to make some suggestions about how to frame voir dire questions which elicit more honest answers--discover true beliefs--instead of driving the juror's conscious or unknown bias underground. Of course, effective voir dire questioning techniques has the goal establishing a challenge for cause based a prospective juror's negative, biased belief which he cannot "set aside."
Avoid "Prehabilitation" of Jurors with Voir Dire Questions
How many of us have listened to a judge in voir dire ask the following line of questions: "you must only listen to the evidence you hear in court, the parties want to know if you are capable of being fair to both sides, we want to see if you're willing to follow the law. Or, my favorite: "as a juror, are you able to set aside your personal beliefs and experiences and be fair to both sides?" Sound familiar? The phrases that I have italicized challenge the juror. Put the juror on the defensive out ability to do something. Thus, in their responses to the judge, the jurors deny, ignore or minimize their personal bias. The judge's questions have told you very little. To add insult to injury, if you get up after the judge's questioning and reiterate the judge with leading questions containing phrases like can you: "...do what the law requires, ...fulfill your responsibilities, and ...be fair to both sides." How many jurors do you think are going to raise their hands and honestly say: "I will not follow the law" or I don't want to be fair."
This style of voir dire questioning has been coined "prehabilitation." The term means judge or attorney questioning that leads, in fact, often pushes a prospective juror toward “yes, I can be fair” answer before the juror's potential bias is ever revealed or explored. See Hamilton, The Ubiquitous Practice of “Prehabilitation” Leads Prospective Jurors to Conceal Their Biases, (2014) The Jury Expert, 26(3), 48-65 The effect of framing questions in this manner is to put the juror on the defensive. Who wants to admit that he can't be fair. The juror buries his true beliefs while defending his ability to be fair. More important, if I ask a juror if "he can be fair" or the magic words can he "set aside" his beliefs, I have only rehabilitated the qualifications of the juror, thereby setting up a denial of any challenge for cause I hope to make.
Ask Voir Dire Questions Which Are Neutral and Don't Telegraph the Answer
How attorneys ask voir dire questions matters. Words matter. The choice of word phrases matter. Prospective jurors respond more openly to a voir dire question which is open and doesn't telegraph the desired answer. If my questions do not make a prospective juror feel comfortable talking about or sharing their beliefs and potential bias, then I will never discover or identify who should be peremptorily excused or challenged for cause.
Ask the Which Way Do You "Lean" Question
Here is a question which is neutral and invites the juror to reveal his or her beliefs without actually knowing any of the evidence or law:
“If you had to say that you lean one way or the other about deciding whether a physician was negligent based on the evidence and law which way would you lean?”
Or consider using this question:
“Some people believe that physicians can make mistakes without being negligent, and other people believe that physicians can be negligent for their mistakes, which way do you lean? ("Where do you fall between these two beliefs?")
The questions, as worded, and framed don't telegraph a socially acceptable right or wrong answer to the juror. Similarly, the questions as phrased don't put the juror on the defensive about whether he or she "can be fair."
Ask a Question Which Invites the Juror to Tell You Their Beliefs
You are much better off asking a juror a question which invites the juror to tell you his or her beliefs as opposed becoming defensive.
Try: If you were to serve on this jury and you had to decide whether the defendant Dr. Smith was negligent, “might you have some difficulty” setting aside your beliefs or experiences toward physicians and healthcare?
“might you have some trouble(or “would you struggle”) setting aside your attitude toward or experiences with physicians and healthcare?”
If the prospective juror admits to potential difficulty, then you should simply ask “why?” This allows the juror to answer without the fear of judgment or being wrong. If you turn to a leading question format at this point, then the risk is that the juror will snap back to the good citizen “yes, I can be fair.” More important, you never will discover or expose the juror's true beliefs so that, if the juror is negatively biased, the juror can be pinned down about his beliefs and that he would not change his beliefs under any circumstances. This establishes a bullet proof challenge for cause before the juror can be rehabilitated into saying he can "set aside" his beliefs and "be fair."