Getting the Jurors' True Feelings

 Posted on May 17, 2007 in Uncategorized

In commenting on my post, A Prosecutor's Voir Dire: Lessons, Gideon wrote:

I'm just afraid of jurors not answering questions like: "Do you have any preconceived notions of what a sex offender looks like" truthfully in front of others.

That's a valid fear whether the others are their fellow venirepeople or two lawyers, a judge, and a court reporter. The problem, no matter the size of the audience, is that such preconceived notions, upon reflection, might seem silly or ignorant to the juror who holds the opinion.

Whether in front of 60 people or 4, how do you get a truthful answer to that question?First, why do you want to get a truthful answer to the question? Because you suspect that your client looks like a sex offender (if you were certain that your client was nobody's idea of a sex offender, you would want that fact to do its work subliminally). Why do you suspect that your client looks like a sex offender? Maybe because, to you, he looks a bit like a sex offender.

Show them yours. They'll show you theirs. In such a situation I might start jury selection like this:

I need to share with you my great fear about this case. When I first saw Joe, before I got to know him, I thought, "he looks like a sex offender." When I got to know him that feeling went away. But I've got to know: who else has that reaction on looking at Joe?

Some people might say yes. Most will say no. That might lead into a discussion of the silliness of such notions - all produced by the panel, instead of by you.

That's just off the top of my head.This relates to the first-date theory of jury selection: If you start asking about the things most intimate to your date without first opening up to her, she's not going to give you much feedback. She might even find you creepy.

There are a hundred different ways to get people talking truthfully about their feelings. All of them involve talking truthfully to them about your own feelings. It's scary every time you do it, until it's not.