Focus Points for Avoiding Making False Assumptions Regarding Prospective Jurors
By Dr. Marshall Hennington
Let's face it, we have all made false assumptions about people who are different from ourselves, based on our first impressions of the individual(s). The courtroom is no safe haven from these mental sand traps.
When it comes to avoiding these mistakes litigators are often at a loss as to what to do. This is especially true when faced with the dilemma of selecting prospective jurors who are minorities. Presented here are a few focus points to safeguard litigators from making false assumptions about prospective minority jurors in order to select a more favorable jury pool.
BEING IN TOUCH WITH BIASES
A state of complete awareness of your personal biases is a difficult position to occupy and operate from when selecting jurors, especially since the very nature of jury selection embraces an inherent preconception of the "prototype" jurors we are looking to select. However, it's a position which must be assumed in order to prevent false assumptions of minority jurors which would overshadow advantageous jury selections.
All trial lawyers should be mindful of the fact that racial minorities and whites have different perceptions of the American judicial system. A recent Gallop poll found that 66% of blacks believe that the system is racist, compared with 37% of whites who believe the same thing. Disenfranchising minority jurors would only increase the perception that the system is racist to such jurors.
Voir dire should be viewed as the litigator's best opportunity to have a conversation with the people who will decide the case. There will be other chances to talk to jurors, but voir dire is the most important opportunity. Before voir dire begins, it is advantageous for litigators to do a quick emotional inventory check of themselves by asking such questions as: are my temperament, attitude, biases and emotions in check? Since most jurors will only share with you what they are comfortable with you knowing, make sure that you do not allow any bad feelings and/or stereotypical thoughts that you may have prior to entering the court room to interfere with your impressions of prospective jurors. Remember, you are only seeing a small part of someone's life that they are willing for you to share with them.
Being in touch with biases is the first order of business towards building a trusting relationship with minority jurors. A quick emotional inventory may be the difference between being perceived as a fair-minded litigator or a biased one in the presence of minority jurors.
UNDERSTANDING TRUST
Make no mistake about it, jurors judgments are influenced by the race of the participants in a trial. It is advantageous for litigators to establish a rapport with all minority jurors. Do not be afraid to get to know your prospective jurors by revealing information about yourself, instead of solely requiring that jurors reveal information about themselves. The advantages of self disclosure for litigators are that it creates the impression that a reciprocal relationship is being formed during voir dire helps to enhance trust, honesty and promotes bonding with some minority jurors. Prior to entering the courtroom, they may have had reservations about forming a trusting relationship with the litigator.
Litigators often make the mistake that they expect jurors to buy into their philosophy, deliberate on their behalf and render a favorable verdict for them without ever having established a rapport with the jurors. This one-sided relationship will not work with minority jurors because it is viewed as a sign of disrespect. This would be similar to going to a friend's home for a meal, never greeting their family, but proceeding to sit down at the dinner table to eat.
The initiation of trust should occur through a cordial introduction of yourself at the outset of voir dire. Make mention of your role, background, and how you would like to build a trusting relationship with the jurors. This will help jurors feel at ease with you and welcomed in the courthouse. Be aware that a lack of trust creates distances and your role as a successful litigator is to reduce this distance between you and potential jurors in order to increase the possibility of gathering honest responses from jurors.
UNDERSTANDING CULTURE
Before questioning jurors be cognizant that culture has always played a vital role in the lives of minority jurors. Your task as litigator is to shed light on the thought; belief systems and practices which are promoted within particular minority juror cultures. For example, if the prospective juror is a Hispanic immigrant, you would want to explore issues of acculturation, i.e. to what extent has this individual assimilated into the dominant culture, while simultaneously rejecting their own culture traditional vs. new values, behaviors and belief systems, immigration concerns such as deportation; and linguistic isolation issues the individual may have.
Also be sure to avoid asking too many yes/no questions. Instead, ask questions which disclose circumstances around past events. Yes/no questions often do not allow the full disclosure of information to occur. Potential jurors should be given the opportunity to emote. This allows the litigator the opportunity to hear and gauge juror's responses within a particular social context. True insight is particularly useful to have in the event the juror later becomes involved in jury deliberations.
By not taking the time to fully question all potential minority jurors, litigators run the risk of placing themselves at a disadvantage for selecting minority jurors who will not be in sync with the litigators perceptions of them. This may pose a threat to verdicts.
UNDERSTANDING OPPRESSION
I would be remiss in not mentioning the importance of litigators being open to discovering the extent to which a person view him or herself as being a victim of societies oppression and determining whether the oppression is based on race, national origin, class, gender, age, religious beliefs, politic stance, or physical handicaps. Such facts are a salient aspect of many minority jurors' lives and must be explored by the litigator through the questionnaire and verbal voir dire. When jurors are unable to connect with the litigators through a reciprocal verbal exchange during verbal voir dire, an opportunity for juror's to connect with litigators is lost. Therefore, if litigators re question a prospective non-minority juror be sure to do the same for prospective minority jurors.
Litigators should be aware that, the extent of internalized oppression varies within an ethnic groups. For example, an African American juror who is proud of his or her racial group may find a racist remark less upsetting than would a juror who feels uncomfortable with his or her racial/ethnic group membership. Similarly, a poor Hispanic juror who is assertive in seeking information about the judicial process may come to expect that he will be treated more punitively than a wealthy person of European descent in the same circumstances.
Minority jurors want to fully participate in the American judicial system because they have an opportunity to yield real power by impacting verdicts. However, they are often reluctant to do so because they feel they will not be asked to serve on the panel. It is the responsibility of the litigator to not make light of the feelings and concerns of prospective jurors during voir dire questioning, especially since the prospective minority jurors who get selected to a panel will remember such gestures during jury deliberations.
It is in the litigators' best interest to expect to select minority jurors whom they feel can be fair and impartial; likewise minority jurors expect the same conduct from litigators' in the form of presenting case evidence clearly, with well thought out arguments from a compassionate intelligible sphere. By avoiding false assumptions of minority jurors, litigators place themselves in a formidable position in the presence of minority jurors during jury selection.
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