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Take a Cold Hard Look: Is this the best we can do with Jury Selection?
 
Faith in the jury system is cornerstone of our legal system. The faith is that American juries are comprised of solid, decent, law abiding citizens with common sense and the determination to come to a fair decision. Whether or not Maryland juries actually live up to this high expectation depends on one thing and one thing only: The methodology employed by judges during the voir dire process.

Any layperson who experiences a Maryland jury selection will no doubt be dumbfounded by how much time is wasted and how little attorneys learn about prospective jurors. What typically happens is this:  A case might have been percolating through the court system for hours upon hours, days upon days, years upon years.  One or more judges will hear motions and arguments and render decisions all along the way.  Lawyers will have spent countless hours and dollars, taking depositions, working with experts, preparing their clients and discussing the possibility of settlement.  Finally, when the settlement negotiations go bust, the parties go to trial, hoping that a fair jury will decide the case in their favor.  With all this time and money spent on litigation, and with all the lip service paid to the uniqueness of the American jury system, one would think that jury selection would be a meaningful event where prospective jurors share meaningful information about their ability to fairly decide the case in question.  That’s not at all what happens in Maryland.

In Maryland, (and in many states) the litigants show up in court on the day the jury is to be selected.  In the vast majority of cases, this is the very first time anyone (judge, lawyer, client) ever turned their attention to jury selection.  Whether the case is a high-profile murder, a complex medical malpractice suit, or a garden variety car accident case, preparation is often the same: Show up in court with some boilerplate questions and see what happens.

So what happens?  Let’s take a real life example in a criminal case in Montgomery County.  It was a murder trial that was supposed to last four weeks. Jurors showed up having no idea that the case would last an entire month.  This information was sprung on them immediately, causing a collective gasp of horror to rise up from the jurors.  Jurors weren’t ever told that jury duty is both fascinating and meaningful so rather than contemplate the what it might mean to be a juror, people simply started to panic.  Within moments, jurors were told that if they had a hardship, they should line up in the center isle so that the judge could evaluate each person’s tale of woe.

The problems:

The “hardship parade” started with about 20 people springing into line.  One by one, each juror whispered his or her story to the judge while the seated jurors fidgeted quietly.  A few started to speak softly to their neighbors, causing them to be scolded by sheriffs.  Meanwhile, the hardship line started to grow longer and longer. Seated jurors had nothing to do but watch as each successive juror abandoned their ranks and joined the hardship line.  As each new person joined the line, many of the seated jurors realized that maybe they should re-evaluate their own personal hardships and roll the dice with the judge.  And so, the line kept growing longer, not shorter.

Thirty minutes passed and the line was still longer.  Now the seated jurors with no hardships looked at each other with the sheepish expression of, “well I guess we’re not busy or important or clever enough to come up with a hardship story!” Meanwhile, the attorneys participating in this fiasco started to think the same thing about the seated jurors: “What’s wrong with them? Are they all unemployed? Do they hate their jobs? Do they have a secret agenda that makes them want to sit on a jury more than the average person?”

In a state where voir dire is known for it’s speed, this process took all day.  At the end of the day, not a single substantive question about a juror’s impartiality had been asked and by 5 p.m. the court was no closer to seating a jury than it had been at 9:00 a.m.

So what happened? The judge decided that on Day 2, he would call in a larger panel of jurors and use the same ineffective and inefficient process.  Now the largest courtroom was filled with more than a hundred jurors.  This laid the groundwork for a new and different problem.  There were so many people in the courtroom that no one was willing to speak up and answer even trivial questions, let alone substantive ones.  For example, for some reason, the governor’s name was on the witness list (and no, he had nothing to do with the alleged crime!).  The judge asked, “Does anyone here know Paris Glendenning?” No one said a peep, which caused some laughter.  But when the judge continued with substantive questions, like “Would anyone here expect the defendant to testify?” again, no one said a word.  It was obvious that no one was willing to stick their neck out because the circumstances (speaking out with no encouragement in open court, not knowing if one’s answer was useful or a waste of the court’s time)  was too intimidating.

Out of the hundred jurors, only a few raised their hands about relevant personal experiences.  One juror said he came from war-torn Kosovo and his entire family had been murdered.  He felt that it would be very difficult to sit on a murder case.  The judge disagreed because the two situations were completely different. Ignoring the juror’s concerns, the judge sent him back to his seat.  Now it was time to select the jury.  The hardship jurors and the very few jurors the judge deemed hopelessly biased had been excused.  So who was left? A courtroom full of jurors who never said a word.  With the exception of the man who’s entire family was murdered, next to nothing was known about the majority of jurors except their number, their name, and the barest description of their occupation like “manager,” “consultant,” or “customer service.”

Then, the clerk announced 16 names in the order that they appeared on the list.  These jurors came to the front of the courtroom and took their seats as potential jurors and alternates.  Now was time for the attorneys to exercise their peremptory strikes.  This was their chance to eliminate jurors who they feared might be unduly biased.  But what did the lawyers have to go on? Absolutely nothing!! They had no choice but to judge each book by its cover, making a hocus pocus assessment of frown lines and paperback titles, outfits and body language.  No wonder people outside the legal system stand ready to criticize how lawyers exercise their peremptory challenges.  It certainly looks discriminatory when an attorney eliminates a female, or a minority, or any kind of person when the attorney has absolutely no idea who that person is and what that person might believe.

While the attorneys were making these impossible decisions, one brave juror seated in the audience tentatively raised his hand and was escorted to the bench.  He whispered and pointed to a man seated in the jury box. He told the judge that he had been sitting next to that juror during the voir dire process and that juror turned to him and said, “That defendant is GUILTY!” The judge told the man that he should have spoken up sooner but that was beside the point.  It was now even clearer (at least to the attorneys) that the jury selection process was hopelessly flawed: Questions were asked in a way that guaranteed jurors’ silence, thus compromising the defendant’s right to a fair and impartial jury.

As a trial consultant who is also a lawyer, I cringe when one-of-a-kind fiascos are used to indict the entire system.  However, the above example is not one-of-a-kind.  In both civil and criminal cases, jurors in Maryland are often seated without ever revealing a single thing about their belief system, their past relevant work experiences, or their ability to truly be impartial.  I’ve talked to many laypersons who experienced jury selection in Maryland and not only could they not believe they were picked or not disqualified, but many said that they had a particularly relevant bias or experience but that they weren’t asked to divulge such information during the selection process.  Because so little information was aired and shared, the jurors I’ve spoken to in Maryland came away from the experience with the belief that lawyers just make stereotypical assumptions about them and that’s how juries get picked.

The purpose of this critique is not to change the system so lawyers can go on fishing expeditions for “ideal jurors.” However, the system in Maryland must be changed so that jurors and litigants can continue to have justifiable faith in our jury system.  The only way to give citizens that faith is to improve the selection methodology in simple ways that are more efficient and more effective than the current system.

Some solutions:

Deal with jurors’ hardships prior to the day of jury selection so that when jurors come to a court room for voir dire, “hardship cases” have already been dismissed. It makes absolutely no sense to waste everyone’s day because a certain percentage of people want to try to talk their way out of jury duty.  Let them do the talking on their own time and dime, and let some court official make that decision outside of open court.  While one or two new hardships might arise on the day of jury selection, jurors must understand through their summons that unless they raise a hardship prior to the court date, they will be deemed a candidate for jury duty.  The beneficial consequence of such a practice is tri-fold: First, jurors will get the message that jury duty is a serious duty that we all sign up for as Americans:  When they show up for court, they know that they are ready and able to do their duty.  Second, jurors will be more willing to do their duty. When they see that jury selection is run efficiently, they will have less fear that the trial will be a mind-numbing waste of their time.  Third, this will give the judge and counsel the time they need to ask jurors about real and harmful biases, instead of spending all day talking about minor surgery and babysitting problems.

Only question jurors on an as-needed basis.  This is called the “struck method” in many other states and it can be used whether jury selection is conducted by counsel or by judges.  In Maryland, the judge poses questions to every juror on the list, even though only the first 10, 12, or 16 jurors on the list face a realistic likelihood of being seated.  By posing questions to everyone, more time is wasted by learning the tiniest bit of information from the greatest number of jurors. Why not learn the greatest amount of information from the smallest number of jurors needed?  If the clerk would fill the jury box first, then voir dire could take place only with those chosen few.  Those jurors would answer substantive questions and share information about their backgrounds. The judge and counsel would know for sure if the prospective jurors were a) sane; b) capable of speaking and understanding English; c) had significant baggage or experiences that would either make them an “expert” or interfere with their impartiality.

The court and counsel would develop a comfort level with the jurors in the box, sensing if a “hanging juror” or a really odd and problematic duck was in their midst.  Likewise, the jurors seated in the box would get comfortable talking about themselves, understanding that this is precisely the purpose of the jury selection process.

While private inquiries could still be done at the judge’s bench, it is the judge’s job to encourage jurors that this is their one chance to be completely honest.  If jurors get the impression that they aren’t supposed to honestly disclose their true biases, they won’t! Jurors must be encouraged by word and deed that they are doing their duty by being forthcoming about their reservations and concerns.

Jurors should be asked questions about their opinions.  Too much time during jury selection is spent on boilerplate questions that fail to enlighten anyone.  Most of these questions are some variety of “do you know these people;” “have you ever had the following experiences;” and “can you set aside your personal beliefs and decide the case on the facts and the law.”  Frank, open discussions about biases are avoided like the plague.  Perhaps the fear is that it will cause the jury selection process to self-destruct because everyone would get disqualified.  In fact, it would do the opposite: It would resurrect the process into the meaningful activity that it is supposed to be. If jurors were asked to share a few relevant opinions to a few relevant questions, attorneys would no longer have to exercise peremptory challenges based on assumptions about age, gender, race, facial hair and clothing.  If bias-exposing questions were asked, jurors would understand that basic impartiality is a key value of our system. After all, if a juror believes that the medical profession has been absolutely destroyed by money-hungry personal injury lawyers, could that person honestly be open-minded and fair to both sides in a medical malpractice case?  If jurors were allowed to share their opinions about relevant subject matter, all jurors would understand that a relatively open mind is a pre-requisite of jury duty. It would also help eliminate the phenomena of a juror announcing during deliberations that he or she “doesn’t believe in pain and suffering,” or “suing doctors,” or some other legal principle that is required of them.

Substantive opinion questions need not be time consuming or intrusive.  For example, in a medical malpractice case where the plaintiff patient was obese, the plaintiff’s attorney wanted the judge to ask jurors if the plaintiff’s obesity would affect their view of the case.  At first the judge refused to ask the question but she reconsidered and agreed to ask it.  At least ten jurors admitted that while they wished it wouldn’t affect them, they had to be honest and they thought the plaintiff’ weight was proof-positive that the plaintiff didn’t take proper care of himself.  Many also assumed that plaintiff’s weight probably caused his bad medical outcome.  None of the jurors who came forward with that opinion were obese themselves. What they shared in common was just a strong opinion about obesity.  That is why opinion questions are far superior to questions that only ask about relevant experiences.

Written questionnaires should be used more frequently and made a routine part of the process.  The jury selection process is vastly improved when well written and thoughtfully-planned questionnaires are used.  Again, questions need not be voluminous or intrusive but they should cover the core attitudes that are relevant to the case. For example, in one case I worked on, the following question was asked in written form: “If you or someone close to you was injured due to someone else’s negligence, would you consider bringing a lawsuit?”  Jurors’ answers ranged along a spectrum from biased to neutral.  Many jurors said, “maybe, it would depend if I could work to support my family or if my injuries were permanent.”  But some said things like “No, negligence does not equal malice,” and “No, life’s too short to blame others for your misfortunes.”

A written questionnaire response is so helpful because it gives jurors the freedom to be honest.  Meanwhile, it allows the court and counsel to understand the significance of a particular bias by comparing one juror’s answers to the other jurors’ answers.  For example, in a criminal case, a full 80 out of 150 jurors expected a criminal defendant to testify. The judge didn’t excuse all these jurors. She educated them and then excused only those jurors who clung to their initial beliefs.  But only one juror out of 150 thought the government should be able to use wiretaps whenever it wanted to.  The juror wrote: “the only people against wiretaps have something to hide.” This juror set herself apart by her extreme belief and in doing so, the court was able to inquire further, leading to her disqualification.

In some jurisdictions, one or two written questions are incorporated into the summons form so litigants know something other than just the juror’s name and occupation.  In other kinds of cases, (like high-profile, or cases lasting more than three weeks) it makes a lot of sense for the litigants to plan jury selection in advance, making the decision to use an efficient questionnaire months before the actual selection date.

In sum:  It is time for us to treat our jury system with the respect it deserves.  If judges and lawyers think jury selection is a waste of time, no wonder citizens try mightily to evade their civic duty. Instead of throwing up our hands, we need to give the present system a cold hard look and ask: Is this the best we can do? Is this the best way to expose and eliminate the most harmfully biased jurors from a case?  Clearly, we can do much better by asking better questions of jurors, giving jurors an easier forum in which to answer questions (struck method, or written questionnaire) and adopting procedures that show jurors that their time is deemed valuable by the court.

It should be our goal to implement these subtle and simple changes so that jurors leave the courtroom feeling proud.

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