Finding Imbedded Bias During Jury Selection

Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values. You and your opponent examine the venire panel and strike the jurors averse to your respective clients. The surviving jurors rise, bring their right arms to the square and swear to “duly and fairly try the matter.” When the verdict is read at the conclusion of trial, the result shocks you and your opponent.

In a post trial ritual you and opposing counsel engage any of the jurors who will remain to talk to you. You are shocked at what the jurors thought the evidence was and how they arrived at their ridiculous verdict. They based their verdict on issues you and your opponent never raised and certainly never argued.

Read the first line of this blog. “Forty potential jurors enter the courtroom bringing a unique set of imbedded feelings and values.” If you don’t ferret out the “imbedded feelings and values” your jury will be ruling on your trial using “untried issues” to decide the case.

Living in Europe Taught Me a Lesson About Imbedded Feelings.

I learned about the phenomenon of imbedded feelings and values with a vivid lesson when I was a teenager. During the summer between my sophomore and junior years in high school, my family packed up lock, stock, barrel and moved to Germany for an eighteen-month stay. My father’s employer sent the whole family to Europe while my father worked on a team renovating an army missile system that was the backbone of NATO’s nuclear arsenal.

While in Europe, my family traveled to Berlin. To get to Berlin, my family boarded a U.S. Army “duty train” in Frankfurt.

The duty train was the U.S.’s link to Berlin and crossed East Germany every day.  The East Germans restricted the duty train to a nighttime schedule.  The duty train left Frankfurt late in the evening, and arrived in West Berlin at morning’s first light.

I have never slept very well in a moving vehicle, be it a car, a plane, and especially a train. That night was no exception and I kept opening the window shades in my sleeper car trying to see what a communist country looked like.  I saw only darkness.

I have little memory of my time in West Berlin  – but I profoundly remember the day my family went to East Berlin.  We were on a chartered tour.  The double decker red bus, with a wide white stripe on its side traveled through West Berlin with a constant stream of tour guide commentary.  That changed at Check Point Charlie — the crossing into East Berlin.  Our tour guide left the bus at the guard station on the American side of Checkpoint Charlie.  We crossed an open space with concrete tank traps called “dragons’ teeth,” rolls of barbed wire, and machine gun placements.  Upon entering the Russian sector, a new guide boarded.

Someone else left the bus before leaving the American sector – my father. The American government would not allow him to enter East Berlin. He was an American asset our government would not expose to risk. I did not learn until years after he retired that he was working on the delivery system for NATO’s nuclear arsenal.

My time in East Berlin was uneventful, but poignant. I do not remember the sun shining while I  was in East Berlin. It may have been that the Soviet Block had not “cleaned up” the war time damage to East Berlin, or there was a pervading sense of gloom, or maybe the sun did not shine. It may have been the product of my patriotic imagination, or the collective angst of a suppressed people.  We toured a large museum and saw sights on the bus ride around East Berlin, but no sight impressed me more than my father waiting with the American soldiers on our return to the American side.

My memory of the grayness of East Berlin is an absolute memory for me, even if the weather report was for “sunny and clear” for East Berlin that day. I know because I remember regardless of what anyone says, and regardless of the facts. This is because of my memory is a manifestation of imbedded values projected into memory.

Your Jurors’ Perception is Their Reality.

Jurors approach issues and evidence at trial the same way that I remember East Berlin’s weather. The juror’s perception is reality. Many attorneys spend their time in jury selection trying to persuade the jurors by using language from the jury instructions, or inserting themes into their questions, or other “tricks.” You must be different. You must go to the jurors with fears concerning issues or evidence that will arise during trial. Your fears are your soul’s thermometer of the case. You must measure your jurors’ temperatures on the issues, the barometric pressure of the problem evidence and the jet stream’s flow in your case’s dynamic so that you ferret out the potential for untried issues.

How Do You Conduct This Type of Voir Dire?

You first must prepare differently by introspectively considering the case and your fears.

  1. Identify those matters that trouble you about the case.
  2. Explore your personal feelings about the matter(s) that trouble you.
  3. Determine why the matters trouble you.

How do you do this, or select the issues to address?  You first list each problem with the case, or what you fear the other side will use against you. Then ask, what is the underlying emotion, why am I afraid of this?  When you understand the feelings you and your client have on the issues, then you can go to the next level and seek to determine how do you want the jury to feel about you, your client and the case when you finish discussing the issue on voir dire.

At voir dire, using the list and introspection you have conducted, approach the potential jurors by:

  1. Sharing your feelings(s) and fear(s) about the matter(s) with the jury.
  2. Invite the jury to share their feelings about the matter with you.  Ask how they feel about what you are sharing.
  3. Accept (honor) the gifts the jury gives you.
  4. Continue to share your feelings and invite the jury to share theirs.

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