By A. Vince Colella
Moss & Colella P.C.
I was recently assisting my partner in his preparation of voir dire questions for an upcoming first-party auto accident trial. Before drafting our questions, I came across the courts’ trial order, which stated, “The Court allows counsel to conduct voir dire, limited to questions regarding a juror’s qualifications to sit as a juror, potential bias, etc.” Sounded fair. However, as I read further, the order contained a precarious exception: “Questions specific to the case are not allowed.” How would we learn of a potential bias or prejudice without the opportunity to discuss the key facts or evidence in the case?
As a matter of practice, I always ask the jurors to describe and explain what “brutal honesty” means to them. Inevitably, someone will admit that being honest in all situations is difficult because “we” don’t want to hurt other people’s feelings. Examples of brutal honesty are plentiful. For example, we have all received a gift from someone that, quite frankly, we don’t like. If my grandmother were to ask how I like the puppy dog Christmas sweater she bought for me, I would politely smile and say, “Grandma, I love puppies. Thank you.” For the most part, people are polite and do not wish to share their true opinions and views for fear of being judged or offending others. However, in jury selection, brutal honesty is essential to the selection of fair and impartial jurors.
During law school, the prevailing teaching point on jury selection was the theory of “indoctrination.” We were taught to get the facts out before the jury as quickly as possible in a concerted effort to indoctrinate or persuade them to your argument. However, influencing the way in which a juror thinks, or asking them to abandon their beliefs, experiences, and opinions through a brief encounter is unrealistic. Therefore, it is a better practice to “deselect” jurors. An anecdote that exemplifies this point may be found at a county fair. To stress the importance of brutal honesty, an analogy can be drawn between a trial and a pie baking contest. “Mr. Jones, is there a particular fruit that you have a distaste for?” Of course, responses will vary. However, every panel will consist of at least one juror with a healthy dislike of a particular fruit. “Peaches, I dislike peaches.” To further the point, “Mr. Jones, what if I told you that there were three contestants, all of whom have baked pies, and one a peach pie. Do you think you would be the right person to judge the contest?” While only a hypothetical, the comparison is apt, while also highlighting the importance of honestly sharing thoughts, beliefs, and opinions.
This may seem like a hokey trial gimmick; however, making people open to self-awareness is critical in juror selection.
So how can a juror’s bias be examined without exposing them to the facts or evidence for which they will be required to sit in judgment? The term, “voir dire” comes from the French and is literally interpreted as “to speak the truth.” Black’s Law Dictionary, 3rd Ed. (1933) In the United States, the concept of voir dire was borne out of the need to protect against British officials securing seditious libel convictions by allowing only those to be chosen who were favorable to the British Crown. In recent years, many courts have significantly limited lawyers’ ability to conduct jury selection. Consequently, lawyers are learning less and less about prospective jurors.
While the judicial economy may serve as a pretext for courts to place restrictions (including time constraints) on jury selection, it comes at the risk of impaneling jurors who patently may not be suited to sit in judgment of some cases. Simply asking a juror if they can be “fair and impartial” will not promote the type of honest remarks and dialogue necessary for lawyers to make legitimate challenges for cause, or preemptory removal — especially, when the question is posed by the court. All too often, even where jurors have exposed a potential bias or prejudice, courts are reluctant to remove a juror for cause, opting instead to “rehabilitate” them through a series of leading questions designed to shame the juror into abandoning his or her public display of bias. Courts should encourage lawyers to share information about their cases with jurors to allow for meaningful discussion about the issues that may reveal a conscious or unconscious preconception of a juror. Given that the “qualifications” of a juror merely consist of being 18 years of age, a citizen, able to communicate in English, and not having a felony conviction, an emphasis on discovering potential bias is of paramount importance.
The Michigan Supreme Court has recognized the obligation to conduct voir dire “in a manner that will elicit sufficient information to establish a rational basis for excluding potential jurors whose biases render them incapable of being fair and impartial.” People v. Tyburski, 445 Mich. 606, 618 (1994) Therefore, trial attorneys would be wise to file pre-trial motions seeking a fair opportunity to question jurors. Otherwise, your pie may be suited for a different contest.
A. Vince Colella is a founding partner of Moss & Colella P.C., a Southfield, Michigan based law firm specializing in personal injury and civil rights. He can be reached at email@example.com.