By Thomas M. O’Toole, Ph.D.
If you follow my blogs and publications, you know that one of my common phrases is, “a verdict is the product of what jurors choose to talk about during deliberations.” This is a critical point to consider during your case strategy development process. However, we can simplify this statement even more within the context of jury selection to something along the lines of, “a verdict is the product of who does the talking in deliberations.”
In my experience watching mock juries and interviewing actual juries over the past twelve years, one of the consistencies I have seen across them all is that a few personalities emerge in every deliberation and take control of the group. In other words, in your typical group of twelve jurors, four or five will emerge as the vocal advocates, while the remaining jurors sit back and take on passive roles. These passive jurors will make comments here and there and offer their votes, but they are not the kind of vocal advocates who will make persuasive arguments and drive verdicts. This is the job of the leaders. The leaders dictate the agenda. They are motivated and possess the leadership skills to control how the group deliberates and what they talk about. In this respect, if a verdict is product of what jurors choose to talk about during deliberations, then it is ultimately the product of who does the talking, since these are the individuals that ultimately what is talked about.
With this in mind, it is important for attorneys to identify potential leaders during jury selection. Leadership traits alone are not an area for concern. Instead, they become alarming when paired with high-risk attitudes and experiences (i.e. attitudes and experiences that predispose a juror to an adverse case leaning). The identification of leadership traits can be particularly helpful in the all-too-common situation where you have fewer peremptory strikes than you do venire members that concern you. Leadership traits become a means to prioritize these strikes. It is much better to get rid of the concerning venire members who are going to be opinion leaders than it is to get rid of the concerning jurors who are going to be quiet during deliberations.
There are two avenues for opinion leadership in jury deliberations. The first avenue is with the foreperson. While the function of the foreperson can vary, he or she often sets the agenda and dictates the process for deliberations. The second avenue for opinion leadership is with the individuals who are motivated to argue for one side or the other. These are the jurors who will “outspeak” the other members of the group and argue aggressively for the party they support. In my experience, there are typically one or two of these for each side. Both avenues are equally influential.
Research has shown the best predictor of who will serve as foreperson is prior jury experience. This is consistent with my own experience. In mock trials, the lead-in question for foreperson selection is often, “so who has done this before?” Consequently, you should identify venire members who have previously served on juries, particularly if they have previously served as a foreperson.
The other factor that I have seen raised in prior research is moral reasoning. The research shows that people who engage in moral reasoning are more likely to serve as foreperson and exert influence over other members of the jury. These are the people who boil everything down to a matter of principle and exhibit passion for that principle. They are not difficult to spot in voir dire. Look for the individuals who speak with conviction. Their principles are important to them and they will talk about their principles if given the opportunity.
You should also look at job responsibilities. Venire members who work in management and oversee groups of people have the skill and experience that positions them to take control and manage the group in deliberations.
Finally, look for interpersonal leadership traits. Venire members who speak confidently and competently in voir dire (i.e. in front of a large group of strangers) are prime candidates for foreperson or at least to serve as opinion leaders. These are people who are comfortable articulating their opinions in front of a group of strangers, which is the number one criteria for an opinion leader in deliberations. It is also worthwhile to watch the venire members during breaks and downtime. Look for the venire members who seem comfortable striking up conversations with those around them during breaks and downtime. The comfort of striking up conversation with a few complete strangers is similarly indicative of leadership. In the political world, they call this “soft-power” leadership.
These are just a few of the primary indicators of opinion leadership. Attorneys should watch closely for these traits during jury selection and consider them as they narrow the list of peremptory strikes. Leaders can be dangerous, so it is important to know who they are. If you have any doubts about a venire member who exhibits strong leadership traits, it is safest to remove them from the jury.