When it comes to jury selection, many criminal justice systems employ what is known as the voir dire process. Voir dire is a Anglo-French term that roughly translated means to 'speak the truth'.
During the voir dire process in the United States attorneys from both sides, as well as the trial judge can question prospective jurors to establish whether they would be an objective and fair minded juror. If an attorney considers that a prospective juror's views and opinions may be biased against his or her client, they can challenge their inclusion on the jury.
Despite the origins of the voir dire process being rooted in notions of fairness, like all legal powers they are open to misuse.
The following article suggests how jury selection can be improved, particularly in cases that deal with mental state issues and represents the first of a number of contributions by expert forensic psychologist Dr Stephen M Pittel.
Asking the Right Questions: A Way to Improve the Art of Jury Selection
By Stephen M. Pittel, Bob Bloom and Peter Silen
Meaningful participation of counsel in the voir dire process has been seriously limited by recent trial and appellate court decisions, legislative actions and prosecutors' initiatives. Nonetheless, it is reasonable to assume that the outcome of many trials will still rest to a large extent on an attorney's ability to select jurors on the basis of their responses to a jury questionnaire and voir dire inquiry.
In this article we suggest that the art of jury selection can be improved - especially in cases that deal with mental state issues - by including experiential questions that assess the extent to which prospective jurors may be receptive to critical trial issues.
Traditional approaches to jury selection have emphasized asking prospective jurors questions that are designed to reveal their tendency to favor the prosecution or defense. Most of these questions focus on two broad categories of information that social scientists might describe as "affiliative" and "attitudinal."
Affiliative questions probe prospective jurors' membership in, or identification with, a myriad of social and cultural groups that are known to be either more "tough-minded" or more "tenderminded" in their approach to social issues. This category includes both straightforward inquiries about demographic information such as age, marital status, occupation, education, religion, political preferences, etc., and more indirect questions about favorite television shows, participation in community activities, magazine subscriptions, charitable contributions, organizational membership, bumper stickers, etc.
Affiliative questions may provide important clues about a prospective juror's stance toward social issues that can be further probed in the voir dire process. But they cannot stand alone as a basis for selection except in rare instances when a person's responses indicate membership in one or more groups that advocate extreme political attitudes.
it is, of course, possible to make relatively accurate inferences about large groups of people based on demographic and other affiliative information. But the differences in attitudes among members of any group, and the fact that everyone belongs simultaneously to a multitude of social groups whose normative values may conflict makes it impossible to apply this logic to the selection of individuals for jury participation.
Attitudinal questions tap prospective jurors' consciously held and expressed beliefs, attitudes and opinions about a variety of issues that pertain either generally or specifically to the case at hand. General questions of this type might focus on beliefs about the criminal justice system, the presumption of innocence, circumstantial evidence, and other legal principles. More specific questions might focus on attitudes toward race or religion, credibility of police or expert witnesses, eyewitness identification, etc.
Attitudinal questions are useful in jury selection because they focus directly on relevant issues. It is not necessary to make any inferences about a prospective juror's biases when they are openly expressed. But relying on attitudinal questions as a basis for selecting jurors can lead to serious difficulties because most people are either unaware of their biases or unwilling to admit them.
Prospective jurors who disclose their biases in response to attitudinal questions should be believed, but it is unreasonable to conclude that biases do not exist simply because they are notovertly expressed.
The State of the Art
A substantial literature points to the unreliability of traditional jury selection procedures. Much of this literature is based on simulated as opposed to actual trials, but even in mock trials where many complicating factors can be controlled, the behavior of individual jurors is largely unpredictable. In fact, findings from a number of studies show that prosecutors are slightly more likely to challenge jurors who would have voted to convict rather than acquit, and defense attorneys are slightly more likely to challenge jurors who would have voted to acquit rather than convict.
The evidence seems to confirm what everyone involved in the judicial process already knows: that the ability to select "good" jurors rests far more on art and instinct than on the science of prediction. As Einstein once observed: "Prediction is difficult-- especially of the future." But it is not clear that the only alternative to scientific prediction is to rely on art alone. It is equally possible that the ability to select "good" jurors can be improved by reconsidering the kind of information sought.
The Case for Experiential Questions
Asking prospective jurors whether they have had personal experiences that are similar to those that will be used in later testimony may be a better indicator of their openness to a defense argument than asking them the usual questions about their affiliations and attitudes. We believe that this is especially true in cases that involve matters with which lay people have little or no experience and which may, for various reasons, be difficult for them to accept.
In the increasing number of cases that involve what can be called mental state issues, jurors not only have limited experience with the issues, but to the extent they are aware of them, they are likely to view these matters as "technicalities" that are used by crafty attorneys to free criminals to rob, rape and kill again. Because mental state issues are significantly different from issues such as self-defense, fear of police, mistaken identification, alibi, and other matters of more common experience, the presentation of such issues must overcome both ignorance and uninformed resistance.
It is important to probe jurors' attitudes about these matters and to prepare them to accept testimony regarding various aspects of mental state from both expert and lay witnesses, especially in cases where the prosecution has compelling proof of criminal acts by the accused.
Even the generic "good" juror may find it difficult to accept expert mental state testimony regarding, for example, blackouts, inability to form a specific intent, the short and long-term effects of drugs or alcohol, or the significance of the fact that the accused was abused as a child. It is critical that counsel find a way to open the minds of jurors to the validity of mental state evidence, and it is essential that this process begin prior to the introduction of the evidence.
One way to accomplish this is to place greater emphasis on experiential questions that assess prospective juror's personal familiarity with the specific mental state evidence that will be presented in the trial. The rationale for this approach rests on the notion that people who are willing to acknowledge that they have personally experienced a variety of "altered states of consciousness" will be more receptive to testimony about such experiences than people who do not.
In cases that involve dissociation or fugue states, for example, the questionnaire might include items that tap more commonly occurring dissociative-like experiences such as "road hypnosis" that occurs when people drive long distances, turning pages of a book without being aware of what was read, or "spacing out" in school or at work. In cases that involve hallucinations or thought disorder; questions might focus on experiences of delirium caused by high fever or adverse reactions to prescribed drugs.
In cases that involve amnesia, questions might tip the experience of waking up in the morning and being unsure whether one actually spoke to someone on the telephone during the night or if they only dreamed about having that conversation. Other questions that can apply to a variety of cases might focus on saying or doing things in anger that one later regrets, making impulsive decisions, yielding to group pressures, over-eating or overindulgence in alcohol, being unable to resist temptations or break bad habits, etc.
In capital cases, jury questionnaires should focus on three additional types of experiential questions that are tailored to fit the defense evidence. First, questions that tap both personal experiences of abuse, neglect, rejection, etc., and familiarity with others who have suffered those experiences. Second, questions that tap the extent to which the person is "psychologically minded" - that they recognize that such early experiences leave "psychic scars" that cannot be overcome completely. Third, questions that deal with personal experiences involving loss of control, irrationality, addictive and compulsive behavior, etc., and that relate these behaviors to adverse childhood experiences or other developmental events.
The ultimate worth of experiential questions as a basis for jury selection remains to be demonstrated through empirical research. But even before that verdict is reached, we believe that it is important to raise these issues because they will sensitize the jury to pivotal defense issues in a way that may affect their perception of later testimony.
Careful wording of experiential questions to focus on specific mental state issues that are expected to arise in trial can serve to show that even the most seemingly bizarre mental states are more "normal" and thus more believable than they might otherwise appear. They also begin to humanize the defendant in the eyes of the jury because they create a link between his or her experiences and their own.
To use experiential questions effectively places a burden on counsel to research, understand and prepare these issues from the outset. This means consulting with the appropriate experts at the early stages of the litigation to insure that potential jurors are asked about issues that they will be exposed to in the trial. Preparation for the defense and preparation for jury selection must go hand in hand.