When I speak to law school students about how to successfully try cases, they usually have lots of questions.  One of the most common questions I’m asked is, “What should you do when a juror gives you a bad answer?”

Usually, I’ll pause for a moment before replying, because the question perplexes me.  Typically, my response is something along the lines of, “I don’t know what you mean — there’s no such thing as a ‘bad answer’ during jury selection.”

The students always seem a bit surprised at my answer.  “What do you mean there’s no such thing as a ‘bad answer’ during jury selection?  What about when a potential juror says something that poisons the whole panel?  How do you handle it?”

“I never have to ‘handle it,’” I’ll reply, “because it’s almost impossible to poison a jury panel.”

From the looks on their faces, you can tell that they think I’m completely out of my mind, so I have to explain my philosophy about jury selection.  In a nutshell, here’s what I say:

I have a different view of jury selection from many other lawyers.  I believe that it’s almost impossible to poison a jury panel.  It doesn’t matter what a potential juror says — I think that every answer is a good answer.

Let me explain…

Jurors have spent their entire lives developing their beliefs, their life experiences, and their worldviews.  It’s the height of arrogance (or stupidity) for us to think that we can change those views or convince them to ignore an entire lifetime of experiences during the pitiful amount of time we have to conduct jury selection.

Don’t believe me?  Let’s use your beliefs, life experiences, and worldviews about police enforcement officers as an example.  At this point in your life, you’ve established some fixed beliefs and views about police officers.  You may believe they’re inherently good people, you may think they’re inherently dishonest, or your beliefs may fall somewhere in between the two ends of the spectrum.  For sake of argument, let’s assume that you believe police officers are 100% honest and would never do anything dishonest or improper.  Now let’s drop you into the jury pool for a criminal trial where the credibility of police officers is central to the case, and let you listen as the prosecutor begins questioning the man seated next to you:

Prosecutor: “Mr. Wallace, do you believe that police officers are automatically more credible or less credible than any other witnesses?”

Mr. Wallace: “They’re definitely less credible.  I don’t trust cops.  They’ll all lie, cheat, or steal to get what they want.  I remember this one time back in band camp when I was stopped by a cop for no good reason at all.  When I dared to question his authority, he punched me in the stomach, tasered me, shot me in the leg, and then sprinkled crack cocaine all over my unconscious body and inside my car.  I was framed with false evidence, and went to prison for something I didn’t do.  I spent two years in prison before I was released.”

That seems to be a pretty terrible response for the prosecutor, doesn’t it?  Many lawyers would be terrified of eliciting a negative statement like that, because they think it “poisons” the entire jury panel.  They’re afraid that the other jurors will start thinking, “Wow, that’s awful!  Maybe police officers are dishonest, and we shouldn’t trust any of them…”

But the truth of the matter is, this juror’s comments won’t change any of the other jurors’ beliefs about police officers.  If a juror already believes that police officers are dishonest, this juror’s statement simply reinforces their view of the world.  Like we said before, let’s assume that you believe all police officers are 100% honest and would never do anything dishonest or improper.  If you strongly held that belief, would this juror’s comments suddenly make you believe that all police officers are dishonest?  No, you’d probably think, “This guy can’t be telling the entire truth…  There’s something else to the story.  Even if what he’s saying is true, that’s just an isolated incident with a rogue police officer — it doesn’t mean that the police officers in this case are dishonest.”

If your jurors have any convictions at all, a single isolated comment like that won’t change their beliefs, life experiences, or world views.  The only time a jury panel can be “poisoned” is when a juror has specific knowledge about the facts of your case.  For example, if a juror said, “Your star witness is Bill Smith?  I can’t trust that guy.  He’s a liar, a cheat, and a thief.  He steals money from orphans, spits on the flag, and clubs baby seals for fun,” a statement like that can poison your jury panel, because the jurors don’t have any pre-established beliefs about Bill Smith.  They’ve never met him before, so this statement will form their first impression about him and will color everything else they learn about him.  (Experiences like that are few and far between, and easily handled by asking the witness to approach the bench before divulging his personal knowledge about the facts of the case.)

When jurors talk about their beliefs, their life experiences, or their worldviews, it’s impossible for them to poison the panel.  No matter what they say, regardless of how extreme or negative it may be, you should be thankful for their response.

“Wait a minute,” you’re thinking, “I should be thankful?  A juror goes out of his way to attack my case and I should be thankful?!? You’re nuts!”

Yes, regardless of how negative their comments are, you should be thankful for their honest response.  Why?  Because this juror has a heartfelt belief that is harmful to your case.  Nothing you’re going to say or do during jury selection will change their beliefs, so wouldn’t you rather know about that poisonous belief now, before they take it with them back into the jury deliberation room to scuttle your case?  By exposing the belief now, during jury selection, you get the opportunity to intelligently exercise your peremptory strikes or ask the judge to strike the juror for cause.  More importantly, you also get the opportunity to use this juror’s views to shine a light on the rest of your panel and discover who shares similar beliefs.

The next time you’re picking a jury, don’t be afraid of what jurors might say and ask about the issues that scare you the most.  After all, what’s the worst that could happen?  They might stand up and say, “I hate your case!  I hate your client!  And I hate you!”

Your perfect response?  “Great!  Who else feels that  way?”

It’s better to discover those dangerous beliefs before they harm your case.  Regardless of what a juror says, always remember: There’s no such thing as a bad answer during jury selection.

How honest are your potential jurors?  I don’t know about you, but lately, I’ve seen a rash of lying jurors.  And the sad part is, there doesn’t seem to be any guaranteed way to catch them.  In a recent two week span, I selected juries for five different cases.  And in almost every single case, at least one juror lied to me, my opponent, or the court.

In criminal cases, one of the issues I almost always inquire about is whether any of the jurors have ever been charged with a crime.   I explain that it doesn’t matter whether it was a misdemeanor or a felony, and it doesn’t matter whether it was dismissed or whether they went to prison.  Usually, I’ll ask a question like, “Have you, or someone close to you, ever been arrested or charged with a crime?”  Then I’ll ask for a show of hands to see who falls into that category.  Probably every criminal prosecutor and defense attorney asks something similar.  They understand how important it is to know whether or not any of the potential jurors have ever been charged with a crime. 

In the five cases I recently tried, every juror on every panel was asked whether they had ever been charged with a crime.

But here’s the interesting twist: I wasn’t trying to discover whether or not they’d ever been charged with a crime — I wanted to determine who would be honest about it.  I already knew what their answers should be.  In our jurisdiction, we have access to a statewide criminal history program, and run a criminal history check on every potential juror.  In addition, I have a computer in the courtroom, and can pull up more detailed information from the clerk’s office or the case management system. 

Every juror on every panel was asked whether they had ever been charged with a crime, and in almost every single case, at least one of them lied.

After we completed questioning of the entire panel, we asked the judge to bring some of the jurors back into the courtroom for individual questioning.  Almost without fail, once we confronted them about their lie, they would admit the truth.  We heard a variety of reasons why they hadn’t been honest:

One said he’d “forgotten.”  “Forgotten?!?”  This guy wasn’t just given a ticket or a Notice to Appear — he’d spent the night in jail.  Quick, do me a favor and take this pop quiz: How many times have you ever been handcuffed, arrested, and transported to the county jail?  Is that something you “forget?”  (Especially if it only happened 4 or 5 years ago…)

I asked another, “Why didn’t you tell us about the time two years ago when you were sentenced to probation after you got caught acting as a lookout for a burglary?”  Confronted with the details, he shifted uncomfortably in his chair, then said he thought it didn’t count, because he hadn’t been adjudicated.

There were a few other notable comments, but the most memorable was the guy who’d been arrested, convicted of a crime of violence, and sentenced to a lengthy jail sentence.  His reason for not telling us?  He just didn’t want to.  If I hadn’t had the details of his arrest and conviction in front of me, we never would have learned about his prior arrest.

Unfortunately, these lies may not be uncovered until after they’ve affected your verdict.  For example, earlier this year, a $28,000,000 plaintiff’s verdict was thrown out and a new trial ordered because three jurors lied during jury selection.  The defense attorney had asked whether anyone had ever been involved in a lawsuit.  Two of the jurors didn’t raise their hands at all (one had been sued twice, the other three times), and the third admitted she’d filed a lawsuit, but didn’t mention the other nine times that she’d been sued.

We don’t want to believe it, but some potential jurors will lie to us.  These lies affect the integrity of the jury system and the validity of your verdict.  I wish I could give you a secret formula for catching every lie and keeping those potential jurors off of your jury, but there’s no perfect solution.  The best I can recommend is that you make a clear record so that you can ask the court for help if you do uncover a lie.

If you ask, “Has anyone ever been arrested for any crime?” and none of the jurors raise their hands, make sure you create a record.  Say something like, “None of the potential jurors raised their hands”  or, “Let the record reflect that no one has raised their hand.”  Then, if you discover that one of the jurors has a criminal record, the court will have something to act upon.  Without that statement, your appellate record will be ambiguous as to whether or not the any jurors responded to your question.

You won’t be able to catch every lie, and not every lie you catch may matter. But if you do catch someone in a lie and you think it affected your verdict, make sure you have a record that lets the court help you out.

Here’s a quick video with tips for improving your jury selection skills.  In this video, you’ll learn how to decide which questions to ask during voir dire, so that you cover the most important issues and can conduct your jury selection in the most effective manner possible.

Imagine that you’re being audited by the Internal Revenue Service and need to hire an accountant. Since this is such an important decision, you’re going to do a diligent search for the most qualified accountant in your area. You’ll probably pick up the Yellow Pages, look for the accountant with the biggest ad, preferably a full-color advertisement on the back of the book, and immediately schedule your initial consultation. (What? That’s not how you hire someone to perform a critical professional service?!? You’d base your decision on word-of-mouth reputation and the recommendations of your colleagues? Huh… That’s weird.) Walking into his office, you drop two boxes of documents and receipts onto his desk and say, “I’m trusting you with the financial security of my family. I need you to make sure that this audit goes smoothly and keep me out of trouble. Can you do it?”

If he paused for a moment before telling you, “No problem… I think I’m up to the task,” how would you react? Would you leave the boxes on his desk and say, “Thanks! Let me know how the audit goes?” Or would you grab the boxes and run?

Now imagine for a moment that you’re going to the hospital for a minor surgical operation. Moments before they’re about to begin the operation, you hear the doctor tell the nurse, “I’m pretty sure I can do this!”

How would you react? Would you relax, breath deeply, and wait for the surgery to begin? “After all,” you’d think, “it’s only minor surgery — what’s the worst that could happen?”

Probably not, right? Chances are you’d probably jump up from the operating table, rip the IV from your arm, and bolt out of the room.

You’d never accept equivocal answers from the people entrusted with safeguarding your property or your life. Even though it’s only money and only minor surgery, you’d immediately demand a different accountant and a different doctor, because your life is too important to risk on someone who’s “pretty sure” he can do the job.

The same thing is true in the courtroom.

During trial, jurors will be entrusted with safeguarding your client’s money or liberty. To do that, they’ll need to be fair, and they’ll need to follow the law. Yet how many times have you had a juror tell you, “I think I can follow the law?” or “I’m pretty sure I can be fair?”

Usually, these types of responses are just a juror’s honest (albeit conversationally casual) reaction to your questions. It doesn’t necesarily mean the juror won’t be fair, but it’s no guarantee that he will be fair, either. Under the law, these types of answers are considered “equivocal,” which means that either you or your opponent may now be able to strike him for cause by showing the judge that the juror’s equivocal answer raises a reasonable doubt about his ability to be fair or to follow the law.

Getting rid of a juror for cause allows you to use your peremptory strike against another witness, so in reality, a cause challenge is actually worth two strikes. That’s why equivocal answers can be dangerous. A single equivocal answer may give your opponent all the ammunition she needs to strike one of your favorable jurors for cause, saving her precious peremptory strikes to get rid of additional jurors who may be persuaded by your case.

What do you do when a potentially favorable juror gives you an equivocal answer?

Many lawyers try to shove an unequivocal answer down the juror’s throat by “rehabilitating” the jurors. (I’ve been guilty of this in the past). Here’s a typical scenario:

Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, in the courtroom, the law isn’t really set up to deal with “I think I can” type answers. We like to have more definite answers. Just imagine getting on a plane and the pilot says, “I think I can land this plane safely.” Obviously, you’d have some concerns about whether or not you should fly with him. You’d want a definite answer. Can you give me a more definite answer, Ms. Jones? Can you be fair in this case?

Juror: Yes, I can be fair.

The danger in this type of “rehabilitation” is that the court may still have a doubt about the juror’s ability to be fair. If the judge thinks that the witness’s “Yes” response was merely coerced by your questioning, the witness will still be stricken for cause.

Instead, you need to follow up and let the record reflect how the juror truly feels. One of the best ways to do this is by following up with an open-ended question asking the juror to elaborate on her answer. Here’s are two examples:

Sample 1:

  Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, can you think of any reason why you couldn’t be fair in this case?

Juror: No, there’s no reason I wouldn’t be fair.

Sample 2:

  Lawyer: Ms. Jones, can you be fair in this case?

Juror: Um, I think I can.

Lawyer: Ms. Jones, what concerns do you have about your ability to be fair in this case?

Juror: I can’t think of any reason why I wouldn’t be fair.

By asking the follow-up question, you can save this juror from being improperly stricken for cause, forcing your opponent to use one of her limited peremptory strikes. In the courtroom, you only get one chance to hear from the people who will ultimately decide your client’s fate. Hopefully this tip will help you make the most of it!

Have you ever had juror responses like these?

• “I can tell just by looking at him that your client is guilty.”
• “All corporations are evil.”
• “I think all personal injury lawyers are money hungry ambulance chasers.”

Ouch!  Not exactly the answer you were hoping for, was it?

Sometimes answers like these are a juror’s honest feelings about your case.  Others times, the responses are calculated to get them kicked out of jury duty.  Regardless of the reason why they’re saying it, one thing is certain:

You want this potential juror GONE.

You do NOT want them sitting in judgment of your client.  They hate you, your client, or your case, and you don’t want them on your jury.  In fact, once they give you two or three of those “Get me the hell out of here” statements, you may start feeling like they’re going out of their way to poison your entire jury panel.  At this point, you certainly don’t want to hear anything else they say, because you know that you’re going to kick them off the panel.  It may be for cause, or you may need to use a peremptory strike, but either way, they are outta here. Since you’re definitely going to get rid of them, you probably shouldn’t ask them any more questions, right?

Well…  Maybe not.

Wait a moment before you summarily dismiss them.  That awful juror who you KNOW you’re going to excuse or that your opponent is going to excuse…  they’re still valuable.

Here’s an example.  In one trial that I watched, a potential juror in the front row was going out of her way to get excused.  She did NOT want to be there.  Her bias was so obvious to all of the lawyers that when she started responding to a question the lawyer had posed to the entire panel, he actually interjected and said, “Don’t worry, ma’am, you’re going to be excused.”  (Translation: “The plaintiff doesn’t want you here, the defense doesn’t want you here, even your fellow jurors probably don’t want you here.”)

But then, he let her answer the question.

Sure enough, her answer wasn’t very favorable.  She started talking about how she was upset that money was used as the root of all solutions to jury trials…  She was offended that everyone came into the courtroom with their hand out, looking to recoup money…  This was similar to a premises liability case, so the actual perpetrator wasn’t on trial, so she was offended that he wasn’t there, that only the civil defendant was on trial because they had deep pockets…

No question about it, she had strong opinions, and she felt that everyone in the room was entitled to them.  (Later, I heard a fellow courtroom observer comment, “What a miserable human being!”)

Let me ask you a question.  When a juror like that steps up on their soapbox, what should you do?  Your mom probably taught you that you should look at whoever is talking to you.  Good manners indicates that if you ask this juror a question, you should look at her while she responds, right?

Nope.  Looking at her while she answers would be a lousy idea.  She’s gone.  She’s going to be kicked out for cause.  She is definitely going to be excused.

So don’t waste your time listening to her.  Instead, watch what the other jurors are doing.  You already know what this person thinks.  This is your opportunity to learn what the rest of the panel thinks.  Look for body language clues that can tell you who agrees (or disagrees) with her.  Who is nodding (no matter how slightly) in agreement?  Who crosses their arms?  Who leans forward?  Who leans back?  Who turns their head toward her to pay closer attention?  Who turns away in rejection?

Just because you hate a potential juror, it doesn’t mean you shouldn’t ask him any questions.  There’s almost nothing a potential juror can say that will actually poison the panel.  Just because a juror shares his or her deeply held views, that doesn’t mean he’s going to evangelically “convert” everyone else to his point of view.  Your goal is to find out who else shares that viewpoint, but isn’t as outspoken.  Don’t hate these negative jurors.  Love ‘em instead, because they’re giving you valuable insights into the rest of your panel.