In jury trials, the threshold problem in obtaining a fair jury is to somehow get the jury to be open and candid in voir dire so that counsel and the Court can determine which ones have the ability to sit as fair and impartial jurors on that particular case.
While the problem in obtaining a fair jury does not end with that threshold, the problem is magnified ten-fold when that threshold problem is not solved.
It has been my experience in over 30 years of trying jury trials that it is rare that counsel or the Court are able to obtain complete candor from jurors during voir dire. The principal reason for this, based on my many debriefings of jurors after trials have been completed, is that the jurors perceive the jury selection process as a question of, â€œAre you a good enough person to sit as a juror?â€
No one wants to be branded as not being â€œgood enoughâ€ to sit on a jury. That becomes a judgment about the personâ€™s character, integrity, family background, personal opinions, and a host of other factors, which are very sensitive and important to each juror.
To have those factors weighed by lawyers and a judge and found to be â€œso bad as not to be suitable for qualities in a jurorâ€ is something which most jurors dread. They envision their friends, neighbors and family members looking at them skeptically and asking, â€œSo you werenâ€™t good enough to sit on the jury?â€.
Now anyone who looks at the purpose of voir dire and the mechanics of it realistically knows that such reactions are unfounded and do not reflect the purpose or result of jury selection. Nonetheless, it is that gut reaction of jurors during voir dire which causes them to be closed, secretive, and deceptive. Jurors simply do not want to be judged wanting when it comes to jury selection, and they will go to great lengths, consciously or unconsciously, to avoid being branded as â€œunfitâ€.
How, then, can counsel and the judge cause jurors to open up to them, to reveal their true feelings and to be candid?