A favorite client sent me this link with this message, “Wouldn’t this be a fun case to work on!” Jury Selection in the Trump Organization Case a Trial of Its Own – The New York Times (nytimes.com) As I read it I had many thoughts, but mostly just how impossible it would be to truly get a “fair and impartial jury” for any case involving Donald Trump. Love him or hate him, everyone has an opinion. And, to muck up the water even more, I’d be very suspicious of anyone who states that they don’t have an opinion at all. Do they live under a rock? Never read or watch the news? Have no friends or relatives? Are they lying so they can get on the panel? If so, which side are they on?
In July of 2020 I wrote a blog called “The Myth of Juror Rehabilitation” and the NYT article made me pull it out. That blog addressed the research on the ineffectiveness of rehabilitation efforts or a judge’s admonishment to not let biases affect their views of what happened in the case at hand. The primary conclusion, as cited by a 2020 study done at the University of Denver Sturm College of Law, was: “Rehabilitation does not work. If anything, the jurors who say they can set aside bias are more likely to be blind to the role that bias plays in their future fact-finding.”[1]
Additionally, as I read the NYT piece, I thought of a recent jury selection. During the process in response to jurors who clearly expressed bias, the judge did the old “But you would be able to set aside those opinions and be fair to both sides in this case, right?” to which the person either meekly said “yes” or “I’ll try my best.” Cause challenge denied.
Bottom line, it is extremely difficult to separate (to “set aside”) personal opinions – biases – from decision-making; how we take in, process, retain, and then rearticulate the arguments, evidence, and testimony will always be filtered through our biases.
Back to the primary question at hand – “Is a ‘fair and impartial jury’ even possible?” Yes, with some caveats.
First, one should keep in mind that there is a difference between an “impartial jury” and an “impartial juror.” One of the wonders of our jury system is that collectively a group of strangers can productively come together and debate serious issues with the goal of coming to a decision about the truth or falsity of the claims. After watching hundreds of mock juries and the debriefing of real jurors following a trial, it’s clear that jurors work hard and take their task seriously. They want to get it right. I’ve witnessed countless times when one juror will admonish another juror for letting a personal bias impact their thinking. This is not to say that the juror completely sets aside that bias, but as a group they can do so. In reality, you don’t need to persuade all jurors; you need to motivate (make them want to fight for you) and arm (give them digestible, articulable arguments) several of the jurors to the point that they will not back down when faced with a biased juror. Together, the group can make up a “fair and impartial jury.”
What else can you do to ensure that? Here are 3 tips:
1. Have your own set of questions that are more prone to get a juror to feel comfortable expressing that their opinion (or experience) will influence their views of the parties/case. The question that you should not ask is, “With your opinion/view on [X], do you think you can be fair to my client?” Everyone wants to be “fair” and when directly asked, “Can you be fair?” the socially acceptable answer is “yes,” or “I’ll do my best,” each of which will keep the juror on the panel. Instead, try some combination of questions like these:
- Thank you for sharing your viewpoint/belief/opinion. Is there a particular experience you’ve had that has made you feel this way?
- Sounds like this is a strong opinion, correct?
- Have you held this opinion for a long time?
- No one is saying that having a strong opinion makes you a bad or unfair person; it’s just a fact that we all have certain beliefs and opinions that guide how we view things, and your opinion about [X] is something that impacts how you view various issues, correct?
- It doesn’t sound like the kind of opinion that you’ll be changing simply because someone else might think differently, is that right?
- You’re not an unfair person, you just believe/think [“quote their words”] and that is something that will likely influence how you view this case, correct?
- So, considering the issues in this case, do you think that there might be a better trial for you to be a juror on – one that doesn’t involve these issues?
They might not have said the words “I can’t be fair,” but they demonstrated their inability to set their opinions aside, and you’ve given them an out to either be excused or sit as a juror on another case. While this strategy hasn’t worked every time, it has worked often enough that we have improved the jury pool through cause challenges and saved our peremptory strikes for other high-risk jurors.
2. In your case presentation, look for ways to address an opinion that some of the panel might hold by differentiating your client or case facts from that opinion. It could be something as simple as this kind of statement in opening: “You might be thinking that X, but in reality, the evidence will show that Y is true.” Or, with a witness, “Mr. Smith, sometimes people think X, could you tell the jury why that doesn’t apply in this case?”
3. Ask your judge to use the “Implicit Bias” instruction as both a preliminary and final charge. You should look for ways to incorporate phrases from the instruction in your opening or with witnesses, but be sure to include key parts during your closing. Here is a good example:
Preliminary Charge
Our system of justice depends on judges like me and jurors like you being able and willing to make careful and fair decisions. All people deserve fair and equal treatment in our system of justice, regardless of their race, national origin, religion, age, ability, gender, sexual orientation, education, income level, or any other personal characteristic. You have agreed to be fair. I am sure that you want to be fair, but that is not always easy.
One difficulty comes from our own built-in expectations and assumptions. They exist even if we are not aware of them and even if we believe we do not have them. Some of you may have heard this called “implicit” bias and that is what I’m talking about. We judges have the same problem, so let me share a few strategies that we have found useful.
First, slow down; do not rush to any decisions. Hasty decisions are the most likely to reflect stereotypes or hidden biases.
Second, keep an open mind. Avoid drawing conclusions until the end of the case, when you and your fellow jurors deliberate. Remember that when you deliberate, you will have all the evidence and all the time you need to make a careful decision. So, there truly is no need to start making your mind up before then.
Third, you should listen closely to all the witnesses. That is the best way to ensure that you decide this case based on the evidence and the law, instead of upon unsupported assumptions.
Fourth, as you listen to testimony about the people involved in this case, consider them as individuals, rather than as members of a particular group.
Finally, I might ask myself: Would I view the evidence differently if the people were from different groups, such as different racial, ethnic, or gender identity groups?
At the end of the case, I will remind you of these strategies and ask you to focus on the evidence instead of any unsupported assumptions you may have. All we ask is that you, individually and as a group, do your best to resolve this case based upon the evidence and law, without sympathy, bias, or prejudice, to the best of your ability as human beings.
[1] Campbell, et al. (2020) “An Empirical Examination of Civil Voir Dire: Implications for Meeting Constitutional Guarantees and Suggested Best Practices.” University of Denver Sturm College of Law.
