In jury selection, I try to use voir dire to have an open and frank discussion with prospective jurors about their experiences and beliefs. I not only want to know their experiences and beliefs but also how they might affect their ability to listen favorably to my client's case. In essence, based on a juror's belief system, i.e. their world, I'm trying to learn how a prospective juror is going to view, filter and decide the evidence. I stay reminded: "Jurors' see what they believe." But in order to ask effective voir dire questions to discover a prospective juror's true beliefs and deselect potentially biased jurors, I must know: 1) the case law which allows for proper voir dire questions on issues in your case, and 2) the voir dire techniques for asking jurors questions which elicit honest answers. This Blog post is a brief preview to my upcoming live seminar Jury Deselection: The Law and Voir Dire Techniques for Jury Selection, which is sponsored by the Illinois State Bar Association on November 18, 2016
Knowing Illinois Case Law on Proper Voir Dire Subject Matters
In order to conduct an effective voir dire examination, I must know what the Illinois case law is regarding subject matters appropriate for questioning. During jury selection, I always bring to court my voir dire notebooks, which I have maintained for many years, and are indexed and contain every reported Illinois case relating to voir dire. I must know the law on the scope and subject matters allowed in voir dire, or I may have a hard time either asking or defending objections to my proposed voir dire questions.
For example, I like to ask prospective jurors if they have any disagreements with the law applicable to the case, particularly whether the plaintiff's burden of proof which is "the more probably true than not" standard troubles anyone. My experience is that some prospective jurors simply must have absolute, 100% proof. Or, some prospective jurors don't understand how the civil burden of proof is different from the beyond a reasonable doubt criminal standard. Supreme Court Rule 234 prohibits questions which "...directly or indirectly concern matters of law or instructions." However, several reported Illinois cases have upheld the judge and trial lawyers questioning prospective jurors about whether they have any disagreement with a particular law applicable to the case. See e.g. Limer v. Casassa, 273 Ill.App.3d 300, 302 (4th D. 1995) In a malpractice case, I rely on these cases to ask prospective jurors if they have any quarrel with applying a law which requires only that the plaintiff prove his negligence case is "...more probably true than not..." Our Supreme Court has held that it is not error for the civil burden of proof to be stated to the prospective jurors; provided, however, that it is correctly stated. Schaffner v. Chicago Northwestern, 129 Ill.2d 1, 33 (1989) Then, I can also ask if the jurors have any difficulty applying a standard that requires less than absolute proof in order to find negligence. See e.g. People v. Gregg, 315 Ill. App.3d 59, 65, 70, 732 N.E.2d 1152(1st D. 2000)( an attorney is allowed to ask prospective jurors' their attitudes toward a lesser burden of proof – preponderance of the evidence-- to reveal any juror bias and prejudice toward a lessor burden, because simply asking jurors whether they could faithfully apply the law as instructed is not sufficient to disclose any bias. My point is that if I didn't know the case law, I may never be permitted under Rule 234 to ask the burden of proof questions.
Using Voir Dire Techniques to Learn Jurors' True Beliefs
Discovering a jurors true beliefs in voir dire is a challenging task. Asking closed-ended questions is useless. Most jurors will dutifully answer, particularly when asked in a leading manner, that they can "set aside" any personal experiences and beliefs that may affect their ability to be fair. I believe that most jurors will not admit that they are unable to do something. A question that asks the prospective juror can you be fair merely puts the juror on the defensive and he will almost always answer "yes, I can be fair." Indeed, rarely, do jurors volunteer their true beliefs without a well-framed question. Using effective voir dire techniques to learn a juror's true beliefs is vital.
Remember, the goal is identify a prospective juror's true beliefs so that you can intelligently strike unwanted jurors. Richard Gabriel, a jury consultant and recent author of Acquittal: An Insider Reveals the Stories and Strategies Behind Today's Most Famous Verdicts, Berkley Press (2015), has written about jurors and the phenomenon of "confirmation bias." Basically, jurors look to confirm what they already believe. Despite an oath to be fair, when asked to make a tough decision, jurors will default to their belief system. Thus, in jury selection, you must try to learn what jurors already believe about the important issues in your case.
Obviously, questions should be open-ended to get the jurors talking. I try to make my questions neutral and thought provoking. In my book on jury selection, I give some examples of questions that don't telegraph a correct answer:
"If you had to say you lean one way or the other about deciding that a physician was negligent which way would you lean?"
"Some people believe that physicians can make mistakes without being negligent, and other people believe that physicians can be found negligent for their mistakes. How do you feel about this issue?"
Once the juror answers, the voir dire technique is to keeping asking the juror "Why?" to suss out his beliefs. I will have a much better idea whether I want to strike this juror by getting his honest beliefs about why a physician should or should not be found negligent. I may even be able to develop a cause challenge.
In conclusion, jury selection is the process of juror deselection. I need to learn the prospective jurors' true beliefs on issues important to my case and client. But to have any chance of learning those beliefs, I have to know the Illinois case law on voir dire in order to ask non-objectionable questions. More important, I have to understand and practice voir dire techniques that help jurors reveal their true beliefs, so that I step into their shoes and know how they will see and decide the case based on their true beliefs. This helps me intelligently "deselect" unfavorable jurors and win the case.