While it is too soon to know how these changes (the Covid-19 pandemic) will affect juror decision-making and verdicts, we know that plaintiffs’ attorneys can strengthen their cases by recognizing these changes and embracing society’s shared experiences in this time of crisis. This pandemic provides opportunities to explore critical topics in voir dire to assist in evaluating jurors for peremptory and cause challenges.
Jury Selection
We’ve found that anti-Arab […] Muslim prejudice comes in a variety of forms. Some of it stems from perceptions that all Arabs and Muslims are terrorists. Some of it comes from personal experiences that jurors have had with Arabs or Muslims at work or in stores owned by Arabs or Muslims. Other jurors believe that Christianity is in a Holy War with Muslims.
Public records, Google, and social media sites have become common sources to gather information about prospective jurors to assess bias in addition to what is learned in voir dire or when voir dire conditions are limited, such as in federal court. This research can be labor-intensive and expensive. However, technology can streamline the process by doing these searches in a matter of minutes.
We in California live in a highly diverse state, in an increasingly diverse nation, and yet jury pools often do not adequately reflect the population.
Since jury selection involves interacting with a group of people who would generally rather remain silent, sending the right signal about your expectations can make a critical difference in getting the information you need to assess juror bias.
A mini-opening is a brief statement – usually in the range of 5–7 minutes – that describes the context of the dispute, provides a quick overview of the key issues in the case, and gives a “50,000 foot” description of what the jurors will be asked to decide. The basic concept is quite simple: when jurors are given a coherent statement about the case at the outset of voir dire they can do a better job of identifying the issues that may make it difficult for them to be impartial and of revealing any prior attitudes or experiences related to the specific issues in dispute.
The key to getting answers that mean something from jurors, on sensitive matters like race, gender, or any other subject for that matter, continues to be the use of open-ended questions. Planning ahead and being prepared are also essential for obtaining the most information possible, given the courtroom conditions.
Recent United States Supreme Court decisions and some state appellate decisions have greatly restricted attorney-conducted voir dire and the scope of the inquiry. However, at the same time the courts have expanded the prohibition on the discriminatory use of peremptory challenges. This article suggests ways in which this line of cases, along with supporting social science research, can be used to justify and expand meaningful voir dire.