Click to Enlarge
What is the real fight about in a jury trial? Jurors vote their morality. That is, their moral view of justice. We make the choice that makes us feel better about our world. We are given information and then we make up our own interpretation of what that information means based our preexisting worldview. Our worldview actually changes what we believe is going on around us. We are all addicted to the images we create in our minds eye, despite the facts. Moreover, since morality is not the same for every juror, the real contest in a jury trial is which side’s story better embraces the collective morality of the chosen jurors. Think about the implications of this:
- Jurors don’t vote rationally.
- Jurors choose a verdict based upon their personal view of morality.
- Learning how and what a juror believes is justice (which is a type of moral view) is perhaps the most important task of jury selection.
- Most courts will not allow you to thoroughly question jurors about these issues because they do not see the relevance (or think these lines of questioning are too invasive).
AN EXAMPLE
A typical line of questioning in a DUI case is:
COURT: Do you think you can put aside any issues you have with the crime of DUI and follow the jury instructions?
POTENTIAL JUROR: “I think so.”
COURT: “What if we told you that it was the law and you had to?”
POTENTIAL JUROR: “Ok”
These questions certainly have some value. If someone desperately wants to get out of jury duty all they have to do is answer “NO”. If they stand by this answer they get to go home early. For everyone else, it does not really tell us much. Other than any hesitation demonstrated when answering the question, we do not learn anything about how they view the world. In fact, most people believe that they follow rules even when they do not. We don’t always see the world as it is.
ANOTHER EXAMPLE
Now, how about this line of questioning?
ATTORNEY: “Good morning. Have you ever heard the phase ‘if you make your bed, you have to sleep in it?’”
POTENTIAL JUROR: “Yes I have”
ATTORNEY: “Can you tell me if this is an example of what that phase means to you? Let’s say I need to be at a meeting and I am running late. I get in my car and I see my gas gauge is on red – my tank is almost empty. I make a decision. I am going to not stop for gas and see if I can make it to my meeting. So, I get on the road and start driving. After a minute on the highway I feel my car slowing despite pressing on the gas. My car stops in the middle of the highway. Cars are now passing me. I am stuck. Is that, in your mind, an example of making your bed and having to sleeping in it?”
POTENTIAL JUROR: “Yes it is.”
ATTORNEY: “So, I deserve what happened to me there”
POTENTIAL JUROR: “I believe you do.”
Now let’s add some more facts. A few minutes after I am stuck in the middle of the highway, a semi-truck is traveling behind me. The truck driver was texting, didn’t see my car and hits me. I am severely injured and can’t walk anymore. In your mind, since I took the risk (made my bed) do I deserve any consequence for taking that risk. Do I deserve to lose my ability to walk because I decided to drive when I knew I might not have enough gas?
POTENTIAL JUROR: “I guess not. No, you don’t deserve that.”
ATTORNEY: Is it accurate for me to conclude, based on your answers, that you see the world more grey than black or white.
POTENTIAL JUROR: “That is correct”
Which line of questions tell us more about the juror’s moral views of justice? Which line of questions are you more likely to be permitted to ask in court?
_________________
Side Notes