The United States Constitution guarantees our right to a jury trial in both the original document and the Bill of Rights.1 The same right is further guaranteed by our Texas Constitution, art. 1, sec. 15. But more precisely, each constitution guarantees the criminally accused a right to a jury that is fair and impartial. To this end, voir dire was designed as the mechanism to ensure impartiality. It’s the primary means by which bias is discovered in potential jurors. However, even the U.S. Supreme Court has recognized that “determining whether a juror is biased . . . is difficult, partly because the juror may have an interest in concealing their own bias and partly because the juror may be unaware of it.” See Smith v. Phillips, 455 U.S. 209 (1982)(O’Connor, J., concurring). And when potential jurors fail to reveal their bias the voir dire process (and the trial itself) becomes corrupted. For without identifying juror bias a criminal defense lawyer cannot exercise appropriate peremptory challenges and challenges for cause. As a result, the seating of a potentially biased juror can raise grave implications for the fairness of a jury trial.2
Our own jury trial experience teaches us that a juror’s self-report of biasing experiences and attitudes can be unreliable. People generally want to believe they are fair and are unlikely to admit they’re biased. Further, a juror’s answers may be untrustworthy since they can lack awareness of their own biases.3 People also want to respond to questions with socially desirable responses. And there is social pressure to conform to how the group thinks. Lastly, prospective jurors may simply lie.
So how can we get jurors to tell us the truth? First, they must trust us before they’re willing to reveal their true feelings. Trust is an outflow of a relationship. Consequently, building relationships is our starting point with the jury. We begin by interacting with them as individuals. We listen, understand, respond, and affirm them as individuals. Furthermore, jurors must see their answers affect us. They must see they have the power to change our direction and elicit a human response from us. Remember that jurors follow these relationships. Later in the trial jurors will be following relationships we build with witnesses. But for now, we engage in an active relationship with them to engender trust and openness. Acknowledge a juror’s courage for sharing something personal. Respond to their feelings and empathize with them. Although we have prepared questions for voir dire, don’t seek refuge in our scripts. Rather, be attuned to the “tick-tock” of the individual we are sharing with. If we don’t, we’ll be punished by their failure to bond with us. If they don’t bond with us they’ll find another to bond with. Maybe a fellow juror or maybe the prosecutor.
Additionally, potential jurors must understand the importance of revealing their true feelings. Deftly emphasize that their candor maintains the integrity of the jury system. This is a gentle guilt-trip play. You may also briefly explain group dynamics and how often we answer questions in ways we believe are socially acceptable or in ways that conform to how the group thinks. Stress this approach destroys the integrity of our justice system. Sometimes we don’t know we have strong feelings that might color our view of the evidence. Consequently, share something personal to expose your own vulnerability. When jurors see you’re vulnerable they are more likely to explore themselves at deeper levels.
Developing relationships takes time . . . more time than we often have, especially when courts impose a time limit on voir dire. So, with your case strategy in mind identify key areas of potential bias. Base your relationship building around those key areas. Open-ended questions give jurors the best opportunity to share and reveal their feelings. Avoid leading questions unless the objective is to commit the juror to a position benefiting your client. Be patient. Let jurors talk. Don’t be afraid of the answers. Allow the synergy of the group to work for you as people share. Again, establish an atmosphere of respect, acceptance, and affirmation. The last thing a person wants is judgment from a lawyer, judge, or fellow jury member.
In summary, to protect our client’s right to a fair trial prospective jurors must tell us about their true feelings. We increase this likelihood when they trust us. But there can be no trust without relationship. Consequently, build relationships with jurors individually to engender openness and introspection. Allow them see their answers affect you. That being so, the mechanism of voir dire can do its job. As we identify juror bias we can intelligently exercise our peremptory strikes and challenges for cause. In that way we protect each client’s constitutional right to a fair and impartial jury trial.
1. U.S. Const. art. III, sec. 2, cl. 3; U.S. Const. amend. VI.
2. Patterson, Arthur H. & Neufer, Nancy L. (1997) “Removing Juror Bias by Applying Psychology to Challenges for Cause,” Cornell Journal of Law and Public Policy; Vol. 7; Iss. 1, Article 6.
(“Off the Back” featured in the “Voice For The Defense” June 2015)
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.
“Off the Back” is an expression in competitive road cycling describing a rider dropped by the lead group who has lost the energy saving benefit of riding in the group’s slipstream. Once off the back the rider struggles alone in the wind to catch up. The life of a criminal defense lawyer shares many of the characteristics of a bicycle rider struggling alone, in the wind, and “Off the Back.” This column is for them.