I was recently at the Trial Lawyers College teaching and sat down for lunch with another instructor who told me a story about a jury trial in which the attorneys had a juror consultant in jury selection. During attorney-conducted voir dire, the jury consultant was watching the attorney explore the difficult topic of race (without going into the details, race was an issue in the case). Most of the jurors explained that they don’t entertain stereotypes, harbor subconscious bias, or hold any prejudices based on race. We all like to think that of ourselves, of course. And my intent here isn’t to open up a discussion on race in jury trials, which as important as that is, would take far more than one post to explore. I grew up in the South, and I grew up knowing racism, both out in the open and behind closed doors. And I think race is almost always part of any exploration or discussion on justice, fairness, and… well, reality. But I digress.
The lawyer was asking questions of the jury venire panel when one juror raised their hand. The juror told a story about how she was raised not to see skin color. She grew up on a ranch and her father, seeing the long line of Native American workers walk past every day on their way to work, would always offer food, drink, or shelter in bad weather. He would set up hay beds and light a heater for them in the barn, giving them a warm place to stay and food. She told this story in fond recollection of her father, who she clearly loved very much and respected. The jury consultant quickly handed a yellow post-it note with a question for the lawyer. The question was, and the lawyer asked, “where would your father allow those workers to stay if they were white?” The juror teared up, and answered, “He would have them stay in the house.” She realized that there was a difference there and, even though her father was a good, generous and kind man, there was a difference. Even kind people can internalize racial bias.
During the break when the lawyers have to exercise their “peremptory strikes,” the lawyer said he wanted to “kick” the juror– exercise a peremptory challenge and excuse the juror from the case. His feeling was that she harbored some prejudice based on their exchange, and he didn’t want to risk putting a juror on the case that might feel that way. “No,” the jury consultant said, “you have to keep her.” “Why?” the lawyer asked. “Because she was honest.” Being honest, her reasoning went, is more important than saying what the court and the lawyers want to hear.
I practice the “TLC voir dire” method whenever I can in court (another subject that would take tomes to discuss). I am a big believer that it is the most effective way to find jurors who will follow the law and apply the facts of the trial to the law as the judge gives it to them. It’s not, as most lawyers practice, finding jurors who “like you” or “will vote for your case.” It is about finding honest jurors who, despite all the prejudices and biases we all have as humans, will be honest about them and look deep inside themselves to impartially follow the law as the judge gives it to them.
In one of my recent trials, after hours of voir dire, I stumbled on a juror who had the courage to admit in open court that she simply couldn’t follow the law that says that if a defendant does not testify you cannot take that into consideration in any way. Frankly, I believe that most jurors feel the way she did, although not many could bring themselves to admit it because they did not want to appear bias or feel like they were failing to follow the law. But she was real. She was honest. And she chose to exclude herself because she searched herself and realized that she just couldn’t follow the oath and ignore the fact that the defendant didn’t testify.
I’m not saying this is a way to get out of jury duty. And I’m not saying this means that no one can follow the law. It takes a lot of energy to follow the counter-intuitive principles enshrined in the Constitution (presuming the defendant “innocent,” treating the doctor witness the same as any lay witness, only holding the prosecution to the burden of proof, awarding money damages as justice for a dead spouse or relative even though that won’t fix anything, potentially acquitting someone who you think is guilty because there just isn’t enough proof, etc.). But what our goal should be, as trial attorneys, is finding honest and fair jurors, rather than jurors who want to appear fair and impartial, or say what we want to hear. And that’s a huge task.
There are many courts around the country that are eliminating attorney-conducted voir dire from trials. That is an injustice. There is no better way that I know of to help find twelve honest and fair jurors who will follow the law and apply the facts to the law as the judge gives it to them. And I’m thankful and appreciative that most courts in South Dakota still allow attorney-conducted voir dire. It is one of, if not the, most important part of a trial.