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Jury Research Blog

Mastering Group Voir Dire: Tip 1—Adopting the Proper Orientation for the Voir Dire Setting

Posted by Jeffrey T. Frederick, Ph.D. on Thu, Jul 7, 2016 @ 10:07 AM

July 7, 2016

Jeffrey T. Frederick, Ph.D.

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     As I mentioned in the introduction to this series on Mastering Group Voir Dire, group voir dire is the most challenging format for questioning jurors and getting them to respond honestly and candidly. The first tip in our series focuses less on the jurors and more on the attorney who is conducting voir dire questioning.  It is the orientation or approach that the attorney takes to the questioning process that sets the tone for voir dire. (Click here to see a short video for this tip.)

     How you approach voir dire goes a long way in determining the ultimate utility of the questioning process.  Will it be one where jurors are responsive, open, and candid?  Will it trigger attempts by jurors to engage in what social scientists call “impression management”—where jurors try to look their best and hide their real feelings? Or will it make jurors defensive, causing them to seek to limit their responses and overall participation? 

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Topics: jury research, group voir dire, jury selection, Jeffrey T. Frederick, group questioning, voir dire setting, body language and physical orientation, trial consultant

Trial Judges: Can We Talk?!—Supreme Court Case of Foster v. Chatman

Posted by Jeffrey T. Frederick, Ph.D. on Mon, Jun 13, 2016 @ 16:06 PM

June 13, 2016

Jeffrey T. Frederick, Ph.D.

     I usually address my posts to attorneys with suggestions concerning jury issues.  But today, I want to address trial judges (and attorneys) in light of the recent decision in Foster v. Chatman, 136 S. Ct. 290 (2016), concerning the discriminatory use of peremptory challenges.

Foster v. Chatman: Poster Child for Discriminatory Purpose

     First, some basic facts. Timothy Foster, a black man, was convicted of capital murder in Georgia in 1987, months after the landmark Batson v. Kentucky, 476 U.S. 79 (1986), decision banning discriminatory use of peremptory challenges based on race.  While five blacks were qualified during voir dire, none made it on the jury.  One black potential juror, Shirley Powell, was removed for cause the day peremptories were to be exercised (she came in to court and notified the court that she had a close friend who was related to Foster). The prosecutor used four of its challenges to remove the remaining black jurors. The defense raised a Batson challenge setting in motion the three-step Batson procedure: (a) the defense presents a prima facie case that a peremptory challenge had been exercised based on race; (b) the prosecution must provide “race neutral” explanations for its disputed exercise of peremptory challenges; and (c) the judge decides whether the defendant has shown purposeful discrimination.  It was this last step that was at issue in this case. 

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Topics: jury research, jury selection, Jeff Frederick, voir dire, peremptory challenge, Batson v. Kentucky, Foster v. Chatman

Announcing the Mastering Group Voir Dire Tips Series

Posted by Jeffrey T. Frederick, Ph.D. on Mon, Mar 7, 2016 @ 15:03 PM

March 7, 2016

Jeffrey T. Frederick, Ph.D.

Group voir dire is the most challenging format for questioning jurors and getting them to respond honestly and candidly. However, it is not hopeless. Over the course of this year, I will present a series of short tips on how you can conduct group voir dire more effectively and get the most out of this format.  I will address 10 tips using both blog posts and companion short, two-minute videos (check out the introduction here).  The tips will address the following topics:

     Tip 1:  Adopting the Proper Orientation for the Voir Dire Setting.  Whether you are questioning 6, 12, 20, or 40+ potential jurors, your approach to voir dire questioning—your orientation—plays a key role in how effective you will be.  Approaching the questioning process as a job interview, an interrogation, or a conversation determines how the jurors will respond to your questions and how useful their answers will be. Choose wisely—and be confident.

     Tip 2:  Getting Jurors to Talk from the Start.  Voir dire can be an intimidating situation for the attorney—but just think what it is like for the potential juror.  Answering questions, often of a personal nature, in open court, in front of their fellow jurors, the judge, attorneys, and even the media can make anyone nervous and reluctant to talk.  But talk they must if we are to have a useful voir dire.  Using the initial background method of having jurors answer five background questions is one way to help jurors feel more comfortable in speaking at the beginning of voir dire.

     Tip 3:  Capitalize on Initial Hand-Raising.  One of the basic ways jurors provide responses in group questioning is by raising their hands.  While attorneys rely on jurors to raise their hands, jurors are often reluctant to do so.  Using techniques to encourage jurors to raise their hands at the beginning of voir dire (e.g., initial hand-raising) will help jurors feel more comfortable, fostering initial participation and setting the stage for greater participation as voir dire continues.

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Topics: group voir dire, Jeffrey T. Frederick, juror bias, group questioning

When It Absolutely, Positively has to be . . . NOW?!!

Posted by Jeffrey T. Frederick, Ph.D. on Mon, Nov 30, 2015 @ 16:11 PM

Jeffrey T. Frederick, Ph.D.

Researching Potential Jurors During Voir Dire

     In many, if not most, jurisdictions, the list of potential jurors is made available to the parties at some point before the day jury selection begins. As a trial consultant, I am often called upon to conduct research on potential jurors before trial. This research consists of general Internet searches and utilizing sources like social media (e.g., Facebook, LinkedIn, Twitter, and Instagram), news media, publicly available databases (e.g., political contributions, parties in civil lawsuits, housing values, and other public records, etc.), and any custom databases developed specifically for the litigation. Discussions of these activities can be found in chapter 8, “Jurors and the Internet,” of my book Mastering Voir Dire and Jury Selection.

     However, what happens when you don’t get the jury list until the day of trial? Do you give up using information outside of what you can gather through voir dire? Obviously, the information uncovered during voir dire questioning is of primary importance. But outside information can be extremely valuable also. To further complicate the picture, let’s add an information collection target of two hours from the start of voir dire for a venire of 31 potential jurors. Well, a colleague and I recently faced this situation. What we did may get you thinking creatively also.

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Topics: jury research, jury selection, social media, voir dire

Member (Jury) Selection in General Courts Martial

Posted by Gale Burns on Mon, Sep 9, 2013 @ 16:09 PM

September 9, 2013

Jeffrey T. Frederick, Ph.D.

I was recently asked by the American Society of Trial Consultants (ASTC) to guest post on their
"Deliberations" blog and here is the result.

IN A WORLD . . .

where the convening authority selects the entire pool of potential panel members . . .

where the defense and prosecution each have potentially only one peremptory challenge, even in a death penalty case . . .

where challenges for cause are the only realistic method for removing potentially biased members . . .

No this is not the recent movie by the same name, IN A WORLD . . . , that opened in movie theaters last month. This is the world of general courts martial under the Uniform Code of Military Justice (UCMJ). . . . For the remainder of the post, click here.

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Topics: military jury, convening authority, random selection, deliberations, American Society of Trial Consultants, voir dire in military trials, military court, Jeff Frederick, voir dire, courts-martial, UCMJ, liberal grant mandate, military courts, member selection, peremptory challenge, challenge for cause

See You on the Internet—Uh, I Mean, in Court: On Litigation-Based Websites

Posted by Gale Burns on Mon, Nov 5, 2012 @ 15:11 PM

 November 5, 2012

Jeffrey T. Frederick, Ph.D.

A relatively new strategy by litigants is to take their cases to the public, not through press conferences but through establishing a voice on the Internet. True, this is not new. Martha Stewart and Michael Jackson had websites that supported their legal cases, and former Chicago Governor Rob Blagoivich had a Facebook page. Discussions of these activities can be found in Chapter 8, Jurors and the Internet, of my book.

Several interesting developments have occurred since the early days of litigant PR websites. First, getting the message out is not as cost-prohibitive as in the early years. It is relatively inexpensive to develop a basic website, and it costs no money to establish a Facebook, MySpace, Google+, or Twitter account. For example, lawyers for George Zimmerman (the person charged in the death of Trayvon Martin) have established websites for information and fundraising, along with a Twitter account for updates and responses to activities concerning the case. While a Facebook page was established by the defense, it was later suspended because of the vitriolic comments posted by supporters and opponents of Mr. Zimmerman. In an interesting twist on the concept of litigant websites, the defendant (Reeco Richardson) in a stolen vehicle case has a website in his subsequent civil lawsuit filed against Maryland state and local officials for the alleged ramming by a police cruiser of a stolen vehicle in which he was a passenger. Attorneys for the defendant asserted that their website was in response to postings of case information on the Montgomery County Police Department website.

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Topics: jury research, Internet litigant websites, less cost-prohibitive, more detailed information, possible juror tainting, Jeff Frederick

What Is It About "Don't Twitter" You Do Not Understand?

Posted by Gale Burns on Mon, Dec 19, 2011 @ 16:12 PM

December 14, 2011

Jeffrey T. Frederick, Ph.D.

A murder conviction and death penalty sentence were reversed and remanded in part because of tweets by a juror during trial. In a potentially game-changing decision, the Arkansas Supreme Court in Erickson Dimas-Martinez v. Arkansas, addressed an issue different from many other cases of Internet abuse by jurors. The issue facing the court was whether a juror's violation of the court's instruction by tweeting about the case denied the defendant a fair trial, not whether the content of the posts reflected bias or prejudice against the defendant. As such, the facts of tweeting and its timing during the trial proceedings are of interest.

Prior to opening statements, the trial court gave an instruction which included:

When you're back in the jury room, it's fine with me to use your cell phone if you need to call home or call business. Just remember, never discuss this case over your cell phone. And don't Twitter anybody about this case. That did happen down in Washington County and almost had a, a $15 million law verdict overthrown. So don't Twitter. Don't use your cell phone to talk to anybody about this case other than perhaps the length of the case or something like that.

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Topics: jury research, Jeffrey T. Frederick, death penalty sentence reversed, Erickson Dimas-Martinez v. Arkansas, tweeting, bias to defendant, juror failure to follow court instruction was prej, failure to dismiss juror was abuse of discretion, potential for Internet abuse, instructions need to be more concrete, specific, repeatedly delivered, possible jurors' signing of pledge, U.S. v. Biktor Bout

Did I Say That? Another Reason to Do Online Checks on Potential (and Trial) Jurors

Posted by Gale Burns on Thu, Oct 13, 2011 @ 16:10 PM

October 13, 2011

Jeffrey T. Frederick, Ph.D.

Sure, in highly publicized cases, we all ask potential jurors whether they have expressed an opinion to others or, perhaps, written a letter to the editor regarding the case. And we tend to rely on the answers jurors give—although I have been involved in a death penalty trial where a potential juror, as editor of a local newspaper, had "forgotten" that he had written an editorial supporting capital punishment. Fortunately, the defense attorney had a copy of the editorial.

The Internet has vastly increased the opportunity for potential jurors to comment on cases before, during, and after trials. Jurors cannot only write letters to the editor, but they can voice their opinions on media websites and social networking sites (SNSs), e.g., Facebook and Twitter. And they do.

Ah, I Forgot!

A potential juror was recently held in contempt in an Oklahoma murder trial where Jerome Ersland, a pharmacist, had shot a robber five times after the robber lay wounded and motionless on the floor. While the potential juror had said that she had not expressed an opinion on the case, the defense discovered that she had made comments critical of the pharmacist on the local television's Facebook site six months before the trial. For example:

"First hell yeah he need to do sometime!!! The young fella was already died from the gun shot wound to the head, then he came back with a diffrent gun and shot him 5 more times. Come let's be 4real it didn't make no sense!"

The potential juror was removed from the jury pool. During a contempt hearing weeks later, the juror claimed she had forgotten she had made the six comments at issue and that she would have been fair to the pharmacist (who was convicted of first-degree murder). The judge refused to believe the juror, found her in contempt, and sentenced her to 100 hours of community service, which was to take place in the public defender's office.

I Am Ready for the Verdict!

OR, consider the juror who was ready to give her verdict halfway through the trial.  A Michigan juror posted on Facebook the following—"actually, excited for jury duty tomorrow. It's gonna be fun to tell the defendant they're GUILTY. :P." Unfortunately, this post occurred during a break between the end of the prosecution's case and the start of the defense. The judge was alerted to the post, and the juror was dismissed for misconduct, fined $250, and sentenced to write a five-page essay on the Sixth Amendment.

We Did the Right Thing!

Finally, consider the juror who defended the jury's guilty verdict.  A Virginia juror (under the username "Bedford") posted a defense of the jury's verdict on the website of the local paper, including the comment, "We were even given Jocelyn's journals," referring to the murdered victim's journals. Unfortunately, these journals had been excluded from evidence but had made it into the jury room, where jurors read aloud and passed around the journals. The judge sought and received the identity of the juror from the newspaper and subsequently declared a mistrial.

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Topics: Internet, jury selection, Jeffrey T. Frederick, potential juror, social networking sites SNS, media websites, contempt citation, misconduct, Sixth Amendment, mistrial

"I Know You’re Out There . . . How Attorneys Can Conduct Group Voir Dire More Effectively"

Posted by Gale Burns on Mon, Oct 3, 2011 @ 16:10 PM

Jeffrey Frederick, October 3, 2011

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Topics: jury research, Jeffrey Frederick, group voir dire

Facebook and Jury Tampering: A New Threat Posed by Social Networking Sites (SNS) to Jury Integrity

Posted by Gale Burns on Mon, Aug 8, 2011 @ 13:08 PM

August 8, 2011

Jeffrey T. Frederick, Jury Research Services

Recently, the judge in a criminal trial dismissed a jury prior to impaneling them after a friend of the defendant allegedly contacted one of the jurors through Facebook. The juror had reported this contact to the clerk of court. Review of the defendant's recorded telephone conversations from jail revealed the defendant, his girlfriend, and his mother discussing the names of three jurors, one name being that of the juror in question, with instructions from the defendant to contact them. The judge immediately dismissed the jury and revoked the bond of the defendant. An investigation into jury tampering is ongoing.

In March 2011, a former councilman in South Carolina was convicted of jury tampering when he e-mailed grand jurors. He had e-mailed the foreman of the grand jury requesting that the grand jury look into cases of corruption in government.

Much has been made of the impact of the Internet on jurors and the jury system. However, little attention has been paid to the threat posed by individuals contacting potential and trial jurors with the intent of influencing their verdict OR for that matter, jurors contacting the parties themselves, as was the case for a Manchester, England, where a juror received an eight-month jail sentence for contempt for both engaging in Internet research and having online conversations with an acquitted defendant through Facebook. Unfortunately for the juror, she was still deliberating on the fates of the remaining three codefendants at the time.

Of course, jury tampering is not a new phenomenon. While the situation described at the start of this blog may not be the first instance of attempted jury tampering via Facebook or other social networking media, it serves as a warning of a new potential threat to jury trials. According to a Pew research study, 79% of adult Americans are using the Internet, with 59% of these using social networking sites ("SNS"), including Facebook, MySpace, LinkedIn, and twitter.  These SNS serve as a direct channel to jurors serving in our courts today.

Many courts today are revising jury instructions to address Internet issues. However, these instructions, justifiably, tend to focus on jurors seeking information on the Internet. It now appears that additional attention should be directed to instructing jurors early on about (a) not accepting "friend" requests before or during the trial by unrecognized inquirers; (b) reporting to the court all contacts or attempted contacts received from unrecognized inquirers (and recognized inquirers if relevant to the trial); and (c) admonishing jurors against contacting the party(ies) or witness(es) before or during the trial. These instructions should be added to the Internet instructions that address issues of communications concerning the case and the seeking of case-related information or other related Internet searching activity.

As I point out in my book on voir dire and jury selection, Internet-related instructions should be treated separately from other media-related instructions and should include a discussion of the consequences for the juror and the trial that could arise from such activities.

Recently, the juror questionnaire used in the perjury trial of baseball slugger Barry Bonds included instructions concerning the Internet and a statement of the consequences for such violations with an affirmation that the juror understood the court's order. This practice should be refined and expanded.

Two remedies that I think are not warranted at this time are (a) having jurors accept a friend request from the court, and (b) using anonymous juries. The first option is more invasive and premature at this time.  The second option, using anonymous juries, was first fully implemented in 1977 and has received greater attention as of late. However, this remedy introduces the potentially negative effect of the influence of jurors rendering decisions under conditions of anonymity that are not warranted without significant concerns over juror safety, harassment, or intimidation. One study, and the only one found in a search on the topic, found that anonymous student-juries were more likely to convict and to use the most extreme sanction upon conviction than were nonanonymous juries.

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Topics: jury research, Internet, jury selection, jury tampering, social media, social networking sites, Facebook, juror questionnaires, jury instructions, "friend" requests, communication with party or witness, Jeff Frederick, voir dire

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