Tuesday, August 26, 2008

Jury Selection


The Cool Justice Report
Aug. 26, 2008

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com

Final Installment
Of A Three-Part Series

Jury selection in Connecticut's state courts is unique. Lawyers are permitted to question jurors, individually. By contrast, most states, and the federal court, use a box voir dire system, where a large group is assembled and the judge addresses general questions to the group. Lawyers are often permitted to address specific questions to targeted jurors, outside the hearing of the others.

In the individual voir dire, lawyers are required to make decisions to strike or challenge a potential juror immediately following questioning. The number of peremptory challenges (those that can be used to strike a juror without providing a specific reason) is limited. Lawyers must be extremely judicious in their use. Once exhausted, the only vehicle to strike a juror is to ask the judge to eliminate the juror for cause. The foundation of a cause challenge requires that the juror's responses reveal that the juror will not be fair and impartial -- a difficult threshold to meet.

Jury consultants use case specific research from attitude surveys and focus groups to develop a profile of the ideal juror. The consultant uses either a personality-typing test or market research approach in developing the target profile. The lawyer's dilemma trying to achieve the ideal targeted jury is the random nature of initial selection of potential jurors. The ideal juror simply may not be on the panel called to court.

Personality typing is generally based on a personality inventory developed by Isabel Briggs-Myers and her mother, Katherine Briggs. Known as the Myers-Briggs Personality Type Indicator (MBTI), a series of questions is developed and designed to categorize jurors by certain attributes.

Are people sensing or intuitive? Sensing people will react in one predictable fashion while intuitive types will react another. Is the juror a thinking or feeling person? Last, is the juror an introvert or an extrovert?

The MBTI uses responses to specific questions to combine these personality variables. The consultant attempts to classify the jurors into a series of combined personality types.

Is the juror a sensing, thinking extravert, or an intuitive, feeling introvert? Those that ascribe to the MBTI theory attempt to predict how the different combination of personality types will react to litigation theories or certain expected witnesses.

In the box voir dire, the MBTI approach is more effective because the lawyer is able to judge the prospective juror in the context of the entire group. Applying this type of assessment in the individual voir dire is much more difficult because the lawyer never knows who is coming out next in the process.

Whether the MBTI or market research approach are used, the box voir dire lends itself to the submission of a detailed juror questionnaire prior to the day of jury selection. The consultant works with counsel to prepare the questionnaire, using the research data obtained from the survey or focus group. This is then forwarded to the group selected for voir dire. The responses are received in advance and analyzed by the consultant. This permits counsel to seek to excuse certain jurors before they are brought to the court.

In the trial of former Bridgeport Mayor Joe Ganim, using our consultant, we worked with the prosecution to assemble a joint questionnaire that was forwarded to a large panel. After analyzing responses, both sides agreed to a group, about 1/3 of the original, for voir dire questioning.

Cost is always a factor with consultants. In a recent federal trial jury involving major corporate executives, jury consultant costs were rumored to be in the seven-figure range. They were convicted, anyway.

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com

Part Two, Pre-Trial Attitude Check

  • Meehan law firm
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