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    Jury Research Blog

    Mastering Group Voir Dire: Tip 5—Avoid the “Looking Good” Bias

    Posted by Jeffrey T. Frederick, Ph.D. on Tue, Jun 13, 2017 @ 15:06 PM

    June 7, 2017

    Jeffrey T. Frederick, Ph.D.

                The initial tips in our Tips series have focused on setting the stage for effective voir dire (Tip 1; Tip 2; and Tip 3) and capitalizing on open-ended questions (Tip 4) to increase our understanding of jurors.  Now I turn to a major problem in jury selection, the looking good bias, and how to avoid evoking it in jurors. (Click here to see a short video for this tip.)

    Looking Good Bias

                The “looking good” bias (i.e., the socially desirable response bias) is an impression management strategy designed to portray a positive image of oneself to others.  This bias promotes responses that are not true reflections of the individual’s beliefs or experiences, but reflect a desire by the individual to have others think positively of him or her.  In the case of jurors, this looking good bias fosters answers that reflect what jurors think the lawyer wants to hear or what they think are socially acceptable answers designed to create a positive impression of themselves. Obviously, this is exactly what we don’t want jurors to do. The looking good bias is fundamentally different from biases that can arise out of (a) exposure to case information whose influence is unrecognized by jurors or (b) implicit bias that reflects a general bias against a party.

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    Topics: jury research, group voir dire, jury selection, Jeffrey T. Frederick, voir dire, trial consultant, questioning jurors, jury honesty, looking good bias

    Mastering Group Voir Dire: Tip 4—Capitalize on Open-Ended Questions

    Posted by Jeffrey T. Frederick, Ph.D. on Tue, May 16, 2017 @ 11:05 AM

     May 16, 2017

    Jeffrey T. Frederick, Ph.D.

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         So far in the Tips series, the focus has been on setting the stage for effective voir dire by (a) treating voir dire as a conversation with jurors (Tip 1); (b) using techniques that help jurors feel comfortable with speaking in court (Tip 2); and capitalizing on the initial hand-raising technique to encourage participation in the voir dire process (Tip 3).  I turn now to the nature of the questions themselves, in particular open-ended versus closed-ended questions.  While both of these formats have their place in a well-conducted voir dire, one format, open-ended questions, deserves special attention. Knowing how and when to use open-ended questions can vastly improve your effectiveness in jury selection. (Click here to see a short video for this tip.)

    Open-Ended v. Close-Ended Questions

         A major distinction in the phrasing of questions is whether the question is phrased in an open-ended versus closed-ended format.  Open-ended questions are those questions that do not provide the answer within the question itself.  These questions are often prefaced with phrases such as, “What do you think/feel/believe about . . .”; “Why?”; “In what way . . .”.  These questions focus jurors’ attention on the topic, yet leave it to them to formulate an answer. The following are examples of the open-ended approach:

    “How do you feel about patients bringing lawsuits against doctors over the treatment they received?”

    “What would your impression be of defendants in criminal trials who do not testify in their own defense?”

    “What is your opinion of the law that allows for money damages designed to punish a defendant?”

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    Topics: jury research, jury selection, Jeffrey T. Frederick, voir dire, voir dire setting, trial consultant, getting jurors to talk, questioning jurors, juror candor, juror honesty

    Mastering Group Voir Dire: Tip 3—Capitalize on Initial Hand-Raising

    Posted by Jeffrey T. Frederick, Ph.D. on Tue, Mar 21, 2017 @ 12:03 PM

    March 23, 2017

    Jeffrey T. Frederick, Ph.D.

    jurors.jpg

         In the first two tips in our series, I focused on encouraging attorneys to treat voir dire as a conversation with jurors (Tip 1) and to use techniques that help jurors become comfortable with speaking at the beginning of voir dire (Tip 2).  But much, if not most, of voir dire questioning relies on having jurors raise their hands in response to your questions.  Such hand-raising may be an end in itself or, as in many cases, is the gateway for follow-up individual questioning.  Whether it is questioning in smaller groups (e.g., 12-14 potential jurors or less) or much larger groups (20-30 or even 100 potential jurors), encouraging jurors to participate by raising their hands is of primary importance. 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.  (Click here to see a short video for this tip.)

    Initial Hand-Raising

         Just as we considered “breaking the ice” with jurors at the start of voir dire by asking all jurors to participate using the initial background summary technique (five initial questions) in Tip 2, we need to break the initial reluctance of jurors to raise their hands as well. There are two basic approaches to accomplishing this task. The goal of both approaches is to have everyone raise their hands, but each relies on different mechanisms to achieve this goal.  The first approach relies on peer support, while the second approach capitalizes on the qualifications that all jurors share in being in the jury venire.

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    Topics: jury research, jury selection, Jeffrey T. Frederick, voir dire, voir dire setting, minimize uncomfortableness, trial consultant, getting jurors to talk, questioning jurors

    Mastering Group Voir Dire: Tip 2—Getting Jurors to Talk from the Start

    Posted by Jeffrey T. Frederick, Ph.D. on Fri, Jul 29, 2016 @ 10:07 AM

    August 2, 2016

    Jeffrey T. Frederick, Ph.D.120222_SCI_Jury_jpg_CROP_cq5dam_web_1280_1280_jpeg.jpg

        Voir dire can be an intimidating situation for the attorney—but just think what it is like for the potential jurors. 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.  Sure, you can ask potential jurors questions and hope that you get everyone to talk.  And, of course, you have seen Tip 1 and are ready to have a conversation with the jurors once they talk. But it is hard to have everyone talk at the beginning . . . or is it?  (Click here to see a short video for this tip.)

    Initial Background Summary

         When faced with the intimidating nature of the voir dire questioning process, what can we do to encourage jurors to participate (both through talking and raising hands)? One approach is to help “break the ice” with jurors by having everyone talk at the outset of voir dire. Our goal is to reduce the jurors’ initial discomfort in speaking in this public setting by giving them practice in speaking in this setting. I refer to this approach as the Initial Background Summary. The key to this approach is to

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    Topics: jury research, jury selection, Jeffrey T. Frederick, voir dire, voir dire setting, minimize uncomfortableness, trial consultant, getting jurors to talk

    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

    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

    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

    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

    INTERNET: "Excuse Me, Your Honor. I’m Not Finished Blogging Yet!"

    Posted by Gale Burns on Fri, Jan 28, 2011 @ 16:01 PM

    February 1, 2011

    Jeffrey T. Frederick, Jury Research Services

    True story. I was being interviewed by Reuter’s reporter Brian Grow for a story he was doing on the Internet and jurors. As we were talking, he asked me if I wanted to look at something interesting that a potential juror was doing on the Internet. He directed me to a blog or as the juror distinguished, a “live journal.” Here are some samples of the comments the juror was making:

    Jury Duty—part III

    Oct. 20th, 2010 at 12:58 PM

    So. . . My group went to trial where for the next 2 hours hey did void dir-ing. The prosecutor has on the tackiest suit I have ever seen. Out of 50 potential jurors, there are at least 5 gays, right? - he'f better find them and use his challenges. Plus, he was annoying in his part of the questioning. the defense attorney, on the other hand, just exudes friendly. I wanted to go to lunch with him. And he's cute.

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    Topics: jury research, Jeffrey Frederick, Internet, jury selection, social networking, blogging, live journal

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