I recently spoke to attorneys on the subject of challenging jurors for cause at a Jury Selection seminar sponsored by the Chicago Bar Association, Trial Lawyers Section. For me, establishing a valid challenge for cause is one of the most challenging tasks in jury selection. What is cause to disqualify a juror is difficult. For this reason, I want to embark on a series of Blog posts that will remind me and hopefully help new or experienced trial attorneys know what is necessary to establish a challenge for cause and successfully strike a juror. In this first Blog post, I will review what does not constitute cause to a remove a juror based on the juror's testimony under the Illinois "set aside" rule. In the next Blog post, I will review Illinois case law on grounds for successful challenges for cause. Finally, I will attempt to provide techniques for eliciting juror testimony that establishes a bulletproof challenge for cause.
The Illinois "Set Aside" Rule
As I have posted before, each prospective juror comes to court carrying his or her own "belief system" i.e. a world view--background, education, and experiences which has created and instilled opinions, attitudes, preferences and prejudices in the juror. In my voir dire examination, I hopefully will elicit and reveal a prospective juror's true beliefs. For example, a juror who states: "I always thought that there were too many lawsuits and large jury awards." To me, the juror's answers imply a bias against the plaintiff. Obviously, I may exercise a peremptory challenge and excuse the the juror. But if I think that I want to challenge that prospective juror for cause based on anti-lawsuit testimony, because I want to save some peremptory bullets, I better not stop there with this juror. Here is why.
In Illinois, if this anti-lawsuit juror above testifies that he or she can "set aside" personal beliefs and render a verdict based on the evidence and the law, then whatever implied juror bias you believe that you have shown does not establish cause to challenge the juror. People v. Williams, 161 Ill.2d 1, 54(1994); People v. Cole, 54 Ill.2d 401 (1973) Do not forget, jurors are entitled to have negative personal opinions, attitudes and beliefs if they also testify that they can set them aside and can be fair. Williams, id. This is the dreaded "set aside" rule. As the examining attorney, your suspicion of the juror's bias is not sufficient evidence to prove cause. Cole, id.
The "Set Aside" Rule to Overrides a Juror's Personal Beliefs
In Illinois, trial judges who denied challenges for cause have uniformly been affirmed where the juror also testified to the magic words that he or she could "set aside" their personal beliefs by keeping an open mind, listening to the evidence and applying the law, to render a fair verdict. For example:
- challenge for cause properly denied regarding a juror who testified that she favors "Tort Reform" where the juror also testified that she could listen to the evidence, follow the law and be fair. Vrzal v. Contract Transportation Systems Co., 312 Ill.App.3d 755 (1st D. 2000), relying upon People v. Williams, supra.
- challenge for cause properly denied denied regarding a juror who testified to strong, negative feelings about plaintiff's who file lawsuits and that too many cases ere unnecessary, where the juror also testified that she could listen to the evidence impartially and be fair. Addis v. Exelon Generation Co., 378 Ill.App.3d 781, 792-93 (1st D. 2007)
challenge for cause properly denied regarding juror who testified that she had "sympathy" for the widow in a wrongful death case, where she also testified that she would put she sympathy aside and honestly decide the case. Romines v. Illinois Motor Freight, Inc., 21 Ill.App.2d 380 (2d D. 1959).
What is troubling to me is that jurors as human beings do not like to admit to themselves or others that they have a problem being fair. Telling the world that you cannot keep an open mind or be fair is not socially acceptable. Indeed, the juror does not want to admit to you, the judge or fellow jurors that he or she cannot be a "good citizen" and follow the law, or cannot set aside personal beliefs and be fair to others.
Avoid Prehabilitation of the Biased Juror on the Road To Proving Cause
Knowing that a juror's human nature is to not admit to having a "problem" of any kind, and because of enormous social peer pressure, you must be disciplined as the trial attorney to not prematurely rehabilitate ("prehabilitate") a prospective juror. Jurors are socially primed to answer that they will "be fair" "keep an open mind" and "set aside" a negative personal bias. Be careful. Once a juror has given you troublesome testimony, don't rehabilitate the juror with your questions. If you ask questions that invite answers of fairness, then you have less of a chance of winning the challenge motion. You may end up using a peremptory bullet to remove the juror.
In my next Blog post, I will review the Illinois case law for juror testimony that established evidentiary grounds for a successful challenge for cause.