Judges often tell jurors that the word “verdict” comes from the Latin words for “speaking the truth” and that a trial is therefore a search for the truth. But what happens when you try a case in this “post-truth” world we live in? How do you address facts and evidence with folks who believe there may be “alternative facts” or that science is a matter of opinion or that if something is said forcefully and often enough by a particular person it must be true?
The current political climate has completely polarized out society. We are more attached to our particular tribes and beliefs than ever before in modern times. We are currently in what litigators call “trial season” from Early January through Late June is when lots of cases get tried. As I was gearing up for a few of my trials during this period, I realized that we are in a new age that requires different thought about selecting a juror for a trial.
For one thing, my political affiliation and leanings would likely be known to any juror who decided to do some Internet research on me. Now that really doesn’t effect me since my firm is called Cuomo LLC (my partner is the current NY Governor’s first cousin) so most jurors could figure out how I lean without Googling me anyway. But this blog does admittedly exhibit a negative view of the current President from time to time and I have to assume that some potential jurors will find the blog and may bring a negative first impression of me into the jury room. I can address that by inquiring if anyone has heard of me or my law firm or my blog (standard questions in voir dire that are often just cast aside). I can further repair that a negative impression by my demeanor and professionalism during jury selection.
Much harder to assess is how we have to change our voir dire methods to accommodate for juror’s political sentiments that may affect the outcome of the case. For instance, if your client or your main witness is an undocumented immigrant, then you need to make sure you do your best to keep out from the jury folks who who blame the all the ills of America on them. You certainly want to inquire about their thoughts and perceptions of undocumented immigrants. Now you could just ask “Can you be fair to an undocumented immigrant?” and that may work to reveal the most hard-core MAGA followers. But people are reluctant to openly admit they cannot be fair and impartial. They will likely equivocate saying “I would listen to the evidence” or “If the law says they have a right to be in court then I guess I have to go with that.” Perhaps you could just ask jurors to raise their hands if they support a wall along our entire Southern border? No, that would show your cards too clearly. You need to be more subtle than that.
One thing I do is take a close look at jurors as they file into the room and select their seats. What books, newspapers and magazines are they reading? How are they dressed? We have precious little time to question jurors and it is hard to get a full picture of who they are. It forces you to focus on some in depth and others not so much. It leads you to make snap judgments and rely on tropes and stereotypes sometimes.
But what do you do about someone who is part of the assault on evidence-based reasoning when you need evidence-based reasoning on your jury? You have to ask folks where they get their daily information from for starters. You have to ask whether they will go with their initial gut-reaction about something or carefully listen to all the evidence as it is presented. You would be surprised how many people choose “their gut” when you ask them “Let’s say the evidence presented goes against what your initial gut reaction was about the case which would you choose?” We can joke all we want about the fact that the current President of the United States has discounted his daily briefings and the advice and information presented by his national security team because of a gut feeling he has. But this publicly expressed distaste for evidence and information has spread like wildfire to a certain group of individuals.
Juror focus-group research has shown that, since the Trump Presidency, in particular white, male rural, middle class jurors were less likely to pay attention to evidence and instead rely on their own reactions and feelings. Dealing with these jurors in particular cases can be dangerous. They tend to be very opinionated and not afraid to state their opinions. They could take over a jury deliberation or lead to having a hung jury. You need to question them and try to reveal that this particular case might not be the best one for the juror to sit on. Getting as many to talk themselves off will save your peremptory challenges for the tougher more recalcitrant potential jurors.
Use jury selection to get people talking about themselves, how they spend their time, what general principles and beliefs do they consider important. If your case is science based or you are calling a variety of experts, you really need to delve into whether jurors would be willing to listen and assess that kind of evidence.
I don’t know how long this “Post-Truth Era” will last. I do know that practitioners who are not adjusting their voir dire methods to the current political climate are setting themselves up for verdicts they did not expect.
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