Lawyers (and IANALs): invent some voir dire questions to suss out Trumpsters on a hypothetical jury

Politics & Elections
81

Yes, I might. What’s puzzling me is how the highly skilled attorney and judges know the missed bias rate. And I wonder if the ones who realize how much they don’t know here are among the even more highly skilled.

Also, there are levels of bias. I think I have a general pro-defense bias as a juror (a role I’ve only been in once), especially in the kind of tort case I heard. However, I think I also have an open mind in the sense of thinking that.there are a lot of cases where the plaintiff should win. And I wasn’t the only one on the jury like that, while there was one juror clearly the other way.

I never said otherwise. All of my fellow jurors took it seriously. No one tried to rush, and everyone thought they were being fair at all parts of the process.

I think it is often harder to tell the truth than you say here, esepecially when it comes to bias. And because of the unprecedented quantity of predjudicial pre-trial publicity in a Trump trial, prior jury behavior research wouldn’t be fully relevant.

How about a case where conviction would result in a mother (or custodial father) being separated from her children? I’d hate being on that jury far more than with Trump.

Any jury service will change me some. But if true as you seem to mean it, maybe you should stop defending the system with respect to a Trump prosecution. If my safety as a juror can’t come close to being guaranteed, this is a good reason to avoid charging Trump with something that gives him the right to a jury trial.

82

I said nothing about safety. That’s something you assumed. I’m not worried about the safety of the jurors, though keeping them safe will be disruptive to their lives for some period of time. I meant that jury service on important cases does change jurors’ lives forever. It’s an experience that can have a profound effect on them in a number of ways.

I note you also disregarded my earlier post that said this:

Again, it can be done.

83

Why is that disturbing? It’s the same thing we’ve been talking about this whole time. We know Trump has followers who worship the ground he walks on. We know he has followers willing break laws and rules in order to support him. We know he has followers who would rather believe conspiracies than facts. And we know he deliberately uses those people to get what he wants.

It just seems obvious there will be some Trump supporters who would want to get on the jury to save Dear Leader, believing the trial is a sham being run by the deep state, with all of the evidence and fake.

That’s part of the reason you have to be so careful to keep them off the jury, since those people can literally never be convinced by facts.

84

Because I’ve participated in the process literally hundreds of times, and the lying, cavalier juror sitting through a lengthy, important trial is not my experience.

First, when jurors are summoned, they aren’t told what case they’re potentially going to sit on. That doesn’t happen until they are assigned to a courtroom. So they don’t have much opportunity to prepare for any case they’re potentially going to sit on.

Second, people who are fanatics leave trails. Their social media, the publications they read, the stickers on their vehicles. They will be asked about all this stuff, and for these jurors, their answers will be verified by the attorneys and their staff to determine if they’re being truthful. Anyone who demonstrates a strong bias – on either side – will not be allowed to sit as a juror. Often they won’t even realize they’re demonstrating a bias.

Far more common in my experience is the prospective juror who just can’t wait to “explain” to the judge and the rest of the panel exactly why they have already made up their mind about the guilt or innocence of the defendant.

Much of this process can be controlled by the careful use of juror questionnaires. And they won’t even get to the stage of questionnaires – which will be extensive, multi-paged affairs – until a decent-sized panel of prospective jurors is pre-qualified, meaning do they have the time and attention to commit to a case like this, will their job be in jeopardy to sit on a long trial, etc.

Dozens, if not hundreds, will be filtered out in the pre-qualification process alone.

Lastly, I’ve directly seen the effects of solemn oaths administered to jurors to hear a case impartially. People who make it to that stage will be earnest and serious enough to do the job properly. Trump followers, meaning people who are so self-deluded they can’t winnow out fact from fiction, have little chance of getting to that point in the selection process.

Hope that answers your question.

85

So what you’re saying is any person with some armed fanatics apparently backing him may commit major crimes with impunity since

  1. Defendants in serious crime trials are guaranteed the right to a jury trial if requested.
  2. The government can’t station a SWAT team at your, and your extended families’, houses 24/7/366 for the rest of their, and their children’s, lives.

Hint: if true, the terrorists have already won. Further, if true, the politico-mobsters have already won. Welcome to Putin-world.

86

It seems to me that some of the thinking in this thread is based on an incorrect mental model of how juries are put together. There seems to be an idea that once Trump is scheduled to be tried, a host of his supporters will be able to infiltrate the system and sneak in as jurors.

But they can’t do that. You don’t volunteer for jury service; you respond to a random summons that comes to you for trials taking place in your jurisdiction. If Trump was being tried for tax evasion in New York, it’s not like a busload of West Virginia Trump supporters could craftily arrange to be called for jury service on his trial, and then sail through voir dire by successfully faking impartiality.

Right. So no one can engineer their appointment onto Trump’s jury.

87

A bit overstated. I take it as a given that when you put 100 random Americans with voting records (which is where potential jurors are selected from) 30 or 40 of them will have voted for Trump, and at least a dozen of those will be fanatical Trump supporters. But even if it’s only 1 in 100, the voir dire is designed to identify them.

88

Not true where I live. Anyone with a driver’s license (or, I assume, the substitute ID that non-drivers can be issued) can be called for jury duty. I was called multiple times for duty when I had never voted in state (not out of lack of civic commitment, but because I was resident abroad most of the time).

89

One of the more troubling aspects of jury selection in modern times is that ability of lawyers on both sides to simply google prospective jurors and seek out their social media information. While it could be very helpful in weeding out prospective jurors who lie about their views during voir dire by comparing it to their social media accounts, it also walks a thin line of invading juror privacy and potential ethical problems.

There has been much consideration of the issue. Some courts have found that it is actually poor legal representation for counsel to not google prospective jurors (usually in civil cases), while other judges have ordered that both counsel cannot use the internet to research prospective jurors. Most of the ethical considerations by bar associations seem to allow passive monitoring of potential jurors, but are against making any contact whatsoever with them (for example a automated report that a lawyer viewed the juror’s profile).

Its a murky area, but one that any judge must consider before voir dire even begins…

90

There seems to be an idea in this thread that the voir dire process would help the prosecution.

But it would also help the defense. Less? More? We don’t know, but anyone jumping to the conclusion that it would help the prosecution is, well, jumping.

I’m a former Republican, don’t trust prosecutors to charge Trump properly, don’t trust document classification, would take no joy in seeing Baron’s father in prison, and can see myself voting for acquittal on grounds DJT did not clearly do what he’s charged with. BUT — I’m already convinced that DJT has committed serious criminal offenses. I just don’t know if he will be properly charged. So if they asked me if I had a strong preconceived idea that DJT is a criminal, I’d have to say — yes.

So I’d properly be excluded in favor of someone even more pro-defense than I am.

91

My sense is that the prosecution is looking for open-minded jurors who are willing to be persuaded given persuasive evidence, and the defense is looking for closed-minded jurors who won’t move off “Must Acquit Our Dear Wrongly-Charged Leader” for all the money in the world but who can keep their secret fealty hidden throughout the voir dire.

92

@Aspenglow , while I respect your experience in this matter, I also think that this specific case is so far out of your, or for that matter anyone’s, experience that it’s impossible to generalize from prior experience to this case. No, in most cases, most prospective jurors don’t consciously and deliberately lie about their biases. But in this case, I think they will. I just hope that the lawyers and judge will see through their lies.

Without the voir dire process, I think it’s nearly guaranteed that we’d end up with at least one juror who would “fake news” all of the testimony and evidence, and thus prevent a conviction. With the voir dire process, it’s at least possible to get a conviction. Thus, I think it’s pretty clear that, on net, voir dire helps the prosecution, in this case.

93

I know it seems impossible and I do understand the fears. But I’ve worked on some very highly publicized cases (won’t go into which), and the problems you foresee, while real, can be addressed.

Some points:

Any trial for this case is likely months – and possibly years – off. This will work in favor of getting a more impartial jury. Believe it or not, the world will move on somewhat. I suspect as more information comes to light, fewer and fewer citizens will wish to be associated with the insanity that has been the Trump Era. I emphasize the word, ‘trial,’ because that doesn’t mean indictments are years off. Just jury selection. There will be a lot of interim proceedings that don’t require a jury.

This may sound elitist, but think about the average Trump fanatic, their level of education, their ability to take in and process complex information. I suppose you could say it is prejudicial to the defense that jury selection in general is geared toward a more highly educated segment of our society. But it is, and that’s just a fact. If someone struggles to complete the questionnaire, if they reveal that their primary news source is Facebook, if they answer in the affirmative in response to voir dire questioning that they believe in jury nullification (which many of them do)… well, they’re probably not the juror for this criminal case.

In the same vein, who are the people best able to take weeks or months off away from their jobs and families? It isn’t lower middle class people. We say you’ll be tried by a jury of your peers, but that’s not really accurate. You’ll be tried by people who have been successful enough in life to participate in the process.

Venue will matter a lot in this case. Watch for Trump’s attorneys to fight hard to have this case tried in Florida and DOJ to fight for Washington DC.

I am also certain the DOJ has already thought a lot about all these concerns, and they are far better equipped to address the challenges than we are. And I remain confident they can overcome them.

94

I dont know if it’s like this in all states, but last time I had jury duty, everyone waited in the courthouse lobby and had a number assigned. My number and eleven others were called, plus twelve more from the lobby. We were led into a courtroom down the hall, and my group was seated in the jury box. The defendant, accused of murder, sat silently as the attorneys and judge asked us questions. As people were excused from the box, alternates from the other group rotated in.

Anyway, should TFG go to trial, would it be like that? I mean, if you are just a random person showing up for jury duty when selection starts for (hopefully) this trial, once you enter the courtroom and the attorneys started asking questions, and if TFG is sitting there, you’d know what case the selection is for, right? Let’s face it, he is widely known.

If you are just some randon citizen showing up for jury duty, this is a case, as mentioned, that could be life-changing and threatening to one’s safety. ISTM this is a different animal than your average court case, so would the normal jury selection process be changed?

95

The defendant was not in the courtroom for jury selection when I did jury duty. About 40 of us were lead into a courtroom and assigned a number. We were told what the charge was (DUI) and questioned by the prosecutor and defense attorney, who then told the judge who they wanted excluded (plus one person the judge excluded himself because they were neighbors), and of those remaining the six with the lowest numbers (including myself) were told that we were now the jury and everyone else was excused.