The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

The Right To Question Prospective Jurors
By Ted A. Donner

I. INTRODUCTION

The United States Supreme Court has now long held that attorneys may use peremptory challenges to excuse prospective jurors for even "silly" or "superstitious" reasons.1 But many judges, in both the federal and state courts, still watch carefully to make sure that attorneys have not fallen back into the primitive (and remarkably short-sighted) practice of excusing jurors because of their race or gender. Thus, the Supreme Court’s almost 20-year old decision in Batson v. Kentucky,2 even if it didn’t ultimately result in any significant changes in the law on jury selection, has at least served to fundamentally change the way in which lower courts approach the process. It has thus become vital, in turn, for attorneys to learn not only what reasons they can offer for excusing a prospective juror, but what questions are available to them to make those determinations in the first place. This article is thus intended to provide attorneys with an overview of the law on jury selection, with particular emphasis on cases dealing with the fundamental issue of what questioning may or should be permitted on voir dire.

II. ATTORNEY OR JUDGE CONDUCTED VOIR DIRE.

At the outset, in many courts, it is important to determine whether the attorneys will themselves be permitted to participate in the voir dire or whether the judge, instead, will simply take in a number of proposed questions and then conduct the process alone, without input from counsel. This is an important consideration, initially, because it determines the extent to which counsel can control the way questions are framed and, ultimately, whether any follow-up questions are pursued that would provide the attorneys with additional insight into the propriety of allowing a particular juror to sit.3

The American Bar Association, the Association of Trial Lawyers of America and the National Association of Criminal Defense Lawyers all advocate a broader role for counsel during voir dire.4 And the growing importance of attorney-conducted voir dire has also been argued by a number of trial attorneys and academics.5 Still, most of the federal courts and many state courts have not yet embraced attorney-conducted voir dire.6

Thus, the fact that Illinois courts routinely allow attorney-conducted voir dire is not only laudable, but something which attorneys should be careful to protect, by making sure that their exercise of the privilege is never abused – and that they use the opportunity granted them to ensure that the questioning of prospective jurors focuses not on arguing their case before trial,7 but on the efficient use of challenges so as to ensure as fair and impartial a jury as possible.

III. CHALLENGES

A. Challenges for Cause

Because the right to a fair jury trial requires that the litigants be provided at least some assurance that the case is being decided by impartial jurors, when voir dire establishes that a particular prospective juror is unable to objectively evaluate and render a decision on the merits, that juror should be excused for cause. Such challenges come in the form of objections to particular jurors on the ground that they would not be able to fairly decide the case, and should be raised before any peremptory challenge is exercised.8

Determining whether a particular prospective juror is so biased that a challenge for cause should be granted as to that juror involves weighing the evidence 9 Thus the trial judge essentially sits as a trier of fact during voir dire such that his or her decision to excuse a particular juror for cause will generally be deemed a question of judicial discretion that will be overturned on appeal only upon a finding of manifest error.10

The Supreme Court held in United States v Wood, accordingly, that:

Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.... Hidden biases and prejudices are inevitably present in any randomly selected group of prospective jurors. Patient and meticulous voir dire will allow the attorney to discover these biases, present them to the judge, and maximize the use of ... challenges. 11

A prospective juror should not be permitted to serve on the jury, as a matter of law in Illinois, if he or she has served on a jury within the prior year, is a party to the action or is party to a suit pending for trial in the same court.12 But beyond this general framework, the question of whether a particular juror is so biased that he or she should be excused for cause remains a question of discretion which, in turn, makes it important to focus on what evidence is elicited during voir dire to support whatever decision counsel wants the judge to make.

B. Peremptory Challenges

In virtually every case in Illinois, a limited number of peremptory challenges is available to counsel who cannot enunciate an appropriate challenge for cause but who are nevertheless convinced that a prospective juror should be excluded from the venire.13 While there is no constitutional right to the use of peremptory challenges,14 the importance of such challenges has been acknowledged by the courts for some time. The denial or impairment of the right to exercise peremptory challenges is thus generally considered fatal and may result in the reversal of a jury verdict even in the absence of a showing of prejudice.

As the Supreme Court found in Swain v. Alabama:

The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits the rejection of a real or imagined partiality that is less easily designated or demonstrable. It is often exercised upon the bare looks and gestures of another, upon a juror’s habits and associations, or upon the feeling that the bare questioning of a juror’s indifference may sometimes provoke a resentment.... [The peremptory challenge] is often exercised upon the ‘sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ upon a juror’s habits and associations, or upon the feeling that the bare questioning a juror’s indifference may sometimes provoke a resentment.15

Still, the availability of peremptory challenges has been the source of increasing criticism from academics and practitioners who see peremptory challenges as a way to side step the community’s right to participate in trials by jury without regard to race or gender,16 so it is likewise important that attorneys ensure that the questions they ask on voir dire – and the bases for their ultimate decisions to excuse any particular jurors - are based on legitimate criteria.

IV. AREAS OF INQUIRY

Because the judge is sitting as the trier of fact, as a general rule, he or she is bound to have discretion in determining the scope and focus of voir dire.17 Thus, in Mu’Min v. Virgina, the Supreme Court found that:

Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. [This Court previously] held that the subject of racial bias must be covered by the questioning of the trial court in the course of its examination of potential jurors, but we were careful not to specify the particulars by which this could be done. We did not, for instance, require questioning of individual jurors about facts or experiences that might have led to racial bias. Petitioner in this case insists not only that the subject of possible bias from pretrial publicity be covered, which it was, but that questions specifically dealing with the content of what each juror had read be asked. [T]he Due Process Clause of the Fourteenth Amendment does not reach this far.18

Nevertheless, there is available precedent for many kinds of questions which attorneys may seek to pursue during voir dire. And these cases can be useful, not only because they exist, but by virtue of the rationale upon which they are based.19 The remainder of this article thus focuses on a sampling of particular areas of inquiry and the extent to which questions may be permitted (and, if permitted, useful) in these areas.

A. Questions Regarding Prospective Jurors’ Occupations and Educational Backgrounds.

The most significant questions to ask are also the easiest to get leave to ask. Judges typically permit the attorneys to ask questions regarding the occupations and eductaional backgrounds of prospective jurors and such questions can provide an invaluable overview of the prospective jurors’ beliefs and decision-making practices. Of all the areas of inquiry, it may thus be said, questions about jurors’ occupation and educational backgrounds may be the most useful.20

Occupations tend to attract certain personality types. Thus, by confirming what a juror does for a living (and how he or she came to hold such a position), an attorney can learn whether that juror is likely to be assertive (e.g., a loan officer), oriented toward details (e.g., accountant), or oriented toward people (e.g. social worker). It can also help, if possible, to determine how a prospective juror’s spouse is employed, or for that matter, the educational and professional backgrounds of his or her immediate family. Questions about juror occupation are important as indicators of specific bias and, on a more practical level, because they provide the attorneys with insight as to how receptive the jury is likely to be to specific lines of inquiry or information during trial. Jurors who work in the same field as some of the witnesses may "speak the same language" and thus be more receptive to the testimony or sentiments of those witnesses. The way jurors process information in work is likely to impact on how they process the information presented at trial.21

B. Questions Regarding Prospective Jurors’ Ability to Follow the Law.

At the opposite end of the spectrum are questions regarding whether prospective jurors will be willing to "follow the law" if chosen to sit on a given jury. Such questions are usually not particularly meaningful. But they are all but universally approved by the Courts and are often cited as one reason a prospective juror whose responses, otherwise may have suggested bias, should nevertheless have been permitted to sit on the jury.

In People v. Bowman, for example, the Court found that, once a juror agreed she could follow the law, her prior equivocations were no longer of such moment that a challenge for cause necessarily should have been granted:

Defendant contends that when Eisenberg and Brunson expressed doubt about their ability to be impartial, they should have been excused for cause. The trial judge denied defendant’s requests. The State contends Eisenberg and Brunson told the court they would be impartial, and, therefore, the trial court properly denied defendant’s request to excuse them for cause.... While a prospective juror may be removed for cause when that person’s views would prevent or substantially impair the performance of his duties as a juror, an equivocal response does not require that a juror be excused for cause. Most importantly, an equivocal response by a prospective juror does not necessitate striking the prospective juror for cause where the prospective juror later states that he will try to disregard his bias.... A complete examination of Eisenberg’s voir dire examination shows the trial court did not abuse its discretion in finding there was no need to excuse Eisenberg for cause.... [W]hen she was asked, "Would you do your best to put [a particular] experience out of your mind and give each side a fair trial as best you can?" In addition, ...she said that [her expeirences] would not cause her to be unfair in this case. Eisenberg’s statements, when viewed as a whole, indicate she could keep a fair and open mind when evaluating the evidence....22

C. Questions Regarding the Expertise of Prospective Jurors.

Attorneys are quick to seek the exclusion of prospective jurors whose expertise is likely to be the subject of testimony at trial – and there is a great deal of authority to support such exclusion.23 Not without cause. The "expert" juror may be called upon by other jurors to express his or her opinions in a manner the Court would not have allowed were he or she called as an opinion witness at trial. Or, worse still, the other jurors may defer to the expert among them whom they believe has a better understanding of at least some of the issues than they could possibly have gleaned from a few days testimony.

Nevertheless, there is one group of expert jurors which attorneys do not seek to disqualify as quickly as they should – the group of other lawyers who occasionally show up in the court room as part of the jury pool.

It is probably not particularly popular to suggest that attorneys should simply never be permitted to serve on juries. Certainly, as many have argued, lawyers are indeed part of the community at large who the parties may have a right to see participate in the process.24 At the end of the day, however, there is a marked tendency among lawyers to take over the role of fore-person. That makes it at least possible that the lawyer-juror will end up as the sole decision-maker, a result which may leave the parties far worse off than they would have been if they’d waived the right to a jury and allowed the case to be decided by a legal authority with better credentials (the judge).25

The fact that a prospective juror has a legal background, either as a lawyer or in some other profession involving legal services, can thus be significant.26 So long as the possibility remains that an attorney will be allowed to sit and perhaps take the lead in the jury’s subsequent deliberations, counsel should be at least wary of the prospect and prepared to address the issue head-on – just as one would question any other prospective juror’s expertise.

D. Questions Regarding Whether Prospective Jurors Have Knowledge of the Case.

There is authority for the idea that the trial judge must allow questioning about whether prospective jurors have been exposed to pre-trial publicity that could affect their ability decide the case fairly. 27 The Illinois Jury Act specifically provides, however, that:

The Jury Act, in addressing challenges to prospective jurors, provides:

It shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged, if such juror shall state on oath that he believes he can render an impartial verdict according to the law and the evidence. In the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression, based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion,) shall not disqualify him to serve as a juror in such case, if he shall upon oath state that he believes he can fairly and impartially render a verdict therein, in accordance with the law and the evidence and the court shall be satisfied of the truth of such statement.28

Where the line is drawn was explained by the Court in People v. Sims:

The State does not dispute the fact that this bizarre case generated an extraordinary amount of media attention but argues that defendant received a fair trial by an impartial jury. The extent of publicity is not as important as what was reported and whether the jurors in this case were influenced by the publicity. After all, [c]rimes, especially heinous crimes, are of great public interest and are extensively reported. It is unreasonable to expect that individuals of average intelligence and at least average interest in the community would not have heard of any of the cases which they are called upon to judge in court. Of paramount importance is the assurance that a juror will be able to set aside all information he has acquired outside of the courtroom, along with any opinions he has formed, and decide the case strictly on the evidence as presented in the courtroom...

During voir dire, the court asked the potential jurors several general questions before tendering the jurors to defense counsel and the prosecutor for further questioning. Specifically, the court inquired: (1) whether each juror had read or heard about the case through the media; (2) whether the information each juror had read or heard had caused him or her to form an opinion in this case; and (3) whether each juror could disregard what she or he had read or heard and be fair and impartial. The jurors that were selected all indicated... that they had never expressed or formed an opinion about the guilt or innocence of defendant; that they had read or heard very little about the case; and that they could be fair and impartial.... Further, defense counsel also questioned the jurors about their possible prejudice from the publicity, and again, all of the jurors selected denied that this information would influence their decision. In fact, many jurors not selected were excused for cause because of their exposure to publicity and because they had formed an opinion of the case. The defendant has not shown, nor can it be determined from the record, that she suffered prejudice or was denied a fair and impartial trial due to the publicity either before or during her trial.29

E. Questions Regarding the Religious and Political Views of Prospective Jurors.

A prospective juror’s political affiliation and religious affiliations may speak volumes about that juror’s ability to fairly decide a given case. Indeed, on a fundamental level, one’s religious or political beliefs are all but certain to impact on even the most fundamental of concepts, such as whether something may be "more probably true than not." How specific jurors’ beliefs may manifest themselves through religious or political affiliations, however, are particularly problematic.

A prospective juror may belong to a political organization which espouses principles completely contrary to those of the attorneys’ client, or may belong to a religious faith which espouses a moral firmament which differs from that of the client. But the national interest in freedom of religion and freedom of assembly run contrary to the pursuit of such questioning on voir dire.30 Thus, most courts are loathe to allow any examination which might be equated with a religious test for service or an improper attempt to exclude particular jurors because of their political affiliations.31

As the Supreme Court concluded in Connors v. United States, the law makes certain assumptions which render such questioning impermissible at best:

We are of [the] opinion that the [lower] court correctly rejected the question put to the juror Stewart as to his political affiliations. The law assumes that every citizen is equally interested in the enforcement of the statute enacted to guard the integrity of national elections, and that his political opinions or affiliations will not stand in the way of an honest discharge of his duty as a juror in cases arising under that statute. So, also, active participation in politics cannot be said, as matter of law, to imply either unwillingness to enforce the statutes designed to insure honest elections and due returns of the votes cast, or inability to do justice to those charged with violating the provisions of those statutes. Strong political convictions are by no means inconsistent with a desire to protect the freedom and purity of elections.... 32

V. CONCLUSION

No matter how one chooses to frame questions on voir dire, it is important to remember that certain kinds of questions are likely to be considered more acceptable than others and, at the end of the day, the questions that are asked should have some bearing on the ability of the prospective jurors to decide the case before them on the merits. Certainly, one should strive to make a good first impression during the process. And it is important to try and get a handle on whether the jurors are being honest in their responses. 33 But the ultimate goal is to determine whether the panel before you is able to decide the case – and the attorneys’ questions should be thus framed to ensure that goal is maintained throughout the process.

1. Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), reh’g denied, 515 U.S. 1170, 115 S. Ct. 2635, 132 L. Ed. 2d 874 (1995). See also People v. Batchelor, 202 Ill. App. 3d 316, 147 Ill. Dec. 608, 559 N.E.2d 948 (1st Dist. 1990) (approving the use of a peremptory challenge to excuse a prospective juror because of inattentiveness).

2. 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). See also Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991); Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994) (cases extending the decision in Batson to include civil cases and peremptory challenges exercised on the basis of gender).

3. See also Jones, Judge Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, 11 Law and Human Behav.131, 135-36 (1987) (attorneys likely to be more successful than judges in eliciting candid responses from potential jurors).

4. Hans, The Conduct of Voir Dire: A Psychological Analysis, 11 Just. Sys. J. 11 (1986).

5. See, e.g. Berry, Litigation Management, Conn L Trib (June 21, 1993) ("For me, the overriding factor in jury selection is the availability of lawyer-conducted voir dire. . . . More than anything else, I want to know as much as possible about the prospective jurors as individuals, rather than as undifferentiated members of some group or class. I want to know if I like them as people; if I do, there’s a good chance they’ll reciprocate that feeling and listen [to my presentation].").

6. The Fifth Circuit stands out as a lone exception among the federal courts, finding that voir dire not only can be – but should be conducted by the attorneys. See, e.g. United States v. Ledee, 549 F.2d 990, 993 (5th Cir.), cert. denied, 434 U.S. 902, 98 S. Ct. 297, 54 L. Ed. 2d 188 (1977) ("voir dire examination in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties."); United States v. Corey, 625 F.2d 704, 707 (5th Cir. 1980) ("Knowing what specific questions to ask is difficult for the judge, who lacks the same grasp attorneys have of the complexities and nuances of a particular case.").

7. See Clifford, Getting Picky Picking Jurors, Chicago Lawyer (May 1993) ("Voir dire gives the attorney the opportunity to inform the jury about some of the facts of the law suit. The attorney, though, should not try to indoctrinate or condition the jurors".). See also Broeder, Voir Dire Examinations: An Empirical Study, 38 S Cal L Rev 503, 522 (1965) (noting that attorneys see voir dire as consisting largely of indoctrination rather than of identifying biased prospective jurors); Alschuler, The Supreme Court and the Jury: Peremptory Challenges & the Review of Jury Verdicts, 56 U Chi L Rev 153, 160 (1989); Prejudicial Effect of Reference on Voir Dire Examination of Jurors to Settlement Efforts or Negotiations, 67 ALR2d 560 (1994).

8. The Supreme Court has held that whether an objection is timely may vary from one jurisdiction to the next because, as the Court held in Ford v. Georgia, 498 U.S. 411, 11 S. Ct. 850, 112 L. Ed. 2d 935 (1991). each state is free to establish its own standards (including standards for when a Batson challenge must be raised or be considered waived). In Illinois, any challenges that are not timely raised will generally be found to have been waived.

9. United States v Wood, 299 U.S. 123, 145-146, 81 L. Ed. 78, 57 S. Ct. 177, 185 (1936) (per Hughes, C.J.). See also United States v Jones, 608 F.2d 1004 (4th Cir. 1979), cert. denied, 444 U.S. 1086 (1980).

10. As the Supreme Court held in Mu’Min v. Virginia, a trial court’s decisions with regard to juror impartiality may be reversed only for "manifest error." Mu’Min v. Virginia, 500 U. S. 415, 114 L. Ed. 2d 493, 111 S. Ct. 1899, 1907 (1991).

11. 299 U.S. 123, 81 L. Ed. 78, 57 S. Ct. 177 (1936). See also State of Wisconsin v. Ferron, 579 N.W.2d 654 (Wisc. 1998); People v. Engram, 193 Ill. App. 3d 511, 140 Ill. Dec. 461, 549 N.E.2d 1333 (2d Dist. 1990).

12. 705 ILCS 305/14. See also 735 ILCS 5/2-1105.1 (providing a general right to challenges for cause in civil proceedings).

13. See also Holland v. Illinois, 493 U.S. 474, 480, 107 L. Ed. 2d 905, 110 S. Ct. 803 (1990) ("[The peremptory challenge] is often exercised... on grounds normally thought irrelevant to legal proceedings or official action....").

14. See Stilson v. United States, 250 U.S. 583, 586, 63 L. Ed. 1154, 40 S. Ct. 28, 30 (1919).

15. 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965).

16. See, e.g. Rosen, Jurymandering: a Case Against Peremptory Challenges, 207 The New Republic 15, November 30 (1992) ("Clearly, the real problem with the Supreme Court decisions restricting the use of peremptory challenges is that they do not go far enough. Prosecutors and defense counsel remain free to strike potential jurors for any reason they please, body language, sex, religion, sexual orientation, clothing, occupation or haircut, as long as they pretend not to be striking them on the basis of race. [L]ower courts have upheld peremptory strikes based on a prospective juror’s posture and demeanor, poor attitude in answering questions... and even ‘exuding something that seemed unfavorable....’ The only principled solution is the one Justice Thurgood Marshall proposed in 1986: the elimination of all peremptory challenges.").

17. The Supreme Court thus held in Mu’Min v. Virginia, 500 U. S. 415, 114 L. Ed. 2d 493, 111 S. Ct. 1899, 1906 (1991), that there is "wide discretion granted to the trial court in conducting voir dire... in areas of inquiry that might tend to show juror bias."

18. Mu’Min v. Virginia, 500 U. S. 415, 114 L. Ed. 2d 493, 111 S. Ct. 1899, 1908 (1991).

19. See also People v. Ephraim, 323 Ill.App.3d 1097, 257 Ill.Dec. 291, 753 N.E.2d 486 (1st Dist. 2001) ("The determination of whether a prospective juror is biased is within the sound discretion of the trial judge whose decision will not be reversed unless it is against the manifest weight of the evidence.").

20. See Cyganowski & Scheindlin, A Jury of Peers: Occupational Exemptions, 206 NY LJ 2 (Dec. 4, 1991); Hermann, Occupations of Jurors as an Influence on their Verdict, 5 Forum 150 (1970). See also Professional or Business Relations Between Proposed Juror and Attorney as Ground for Challenge for Cause. 52 ALR4th 964; Juror’s Voir Dire Denial or Nondisclosure of Acquaintance or Relationship with Attorney in Case, or with Partner or Associate of Such Attorney, as Ground for New Trial or Mistrial. 64 ALR3d 126; Professional or Business Relations Between Proposed Juror and Attorney as Ground for Challenge for Cause. 72 ALR2d 673; Competency of Juror as Affected by His Membership in Co-operative Association Interested in the Case. 69 ALR3d 1296.

21. See, e.g. Louisiana v. Searles, 647 So. 2d 1329, 1332 (La. App. 1994), cert. denied, 654 So. 2d 1352 (La. 1995) (reversing a trial court’s decision not to allow questioning on the subject of occupation); Hancock v. Hobbs, 967 F. 2d 462, 465-466 (11th Cir 1992) (occupation is relevant to deciding when to exercise a peremptory challenge); Dunham v. Frank’s Nursery, 967 F. 2d 1121, 1124-1125 (7th Cir 1992) (same); Doret v. United States, 765 A.2d 47 (D.C. 2000), cert. denied, 149 L. Ed. 2d 772, 121 S. Ct. 1980, 69 U.S.L.W. 3729 (U.S. 2001); People v. Nurse, 2002 WL 1760981 (Cal. App. 2002) (Finding that responses to occupational questions can serve as an appropriate basis for rebutting Batson challenges).

22. People v. Bowman, 325 Ill.App.3d 411, 758 N.E.2d 408 (1st Dist. 2001)

23. See, e.g. Care and Feeding of Prospective Jurors, Trial Diplomacy J. 16, 24 (Fall 1978)(Jurors may view the evidence with a disproportionate reliance on their own expertise and should therefore be carefully scrutinized to uncover undisclosed professional biases).

24. See Kotler, Social Norms and Judicial Rulemaking: Commitment to Political Process and the Basis of Tort Law, 49 Kan. L. Rev. 65

(November 2000) ("Regardless of the lawmakers’ motivation, the decision made in some jurisdictions to disenfranchise attorneys would (lawyer jokes aside) serve to preclude jury service by those who share in the culture of the judiciary, thereby effectively separating the role of judge and jury.").

25. It is remarkable how many lawyers write about their experience in a manner that suggests their involvement was of no consequence. Invariably, these lawyers end up as the foreperson – never recognizing that the reason they were given that position is because others saw them as having expertise; expertise they should probably never have been allowed to bring to bear. See, e.g. Taylor, Inside the Juror: The Psychology of Juror Decision Making, SanDiego Just. J. (Winter 1994) ("This summer, I finally fulfilled a long-time dream—I sat on a jury in a real case. In twenty years as a trial lawyer, I picked or helped to pick more than a hundred juries.... Throughout my life, I have had a comparatively simple faith in the jury system as the best method ever devised of separating fact from fiction at trial. However, lawyers often seem to view a potential juror with a law degree as the embodiment of their worst litigation nightmare.... Nonetheless, for reasons I still do not understand, I was selected and served as foreperson of a jury in a highly publicized murder case...."); Berman, A Judge’s View from the Jury Box, New York Law Journal (July 23, 1998) ("For the more than 20 years I had been sitting as a judge in the criminal division of the Supreme Court presiding over more than 500 felony jury trials, I had always wondered what it would be like to be a member of a jury and participate in deliberations.... During the testimony of witnesses, I experienced a rather strange and somewhat amusing impulse. Every time one of the attorneys made an objection, I almost instinctively found myself about to utter from my seat in the jury box ‘sustained’ or ‘overruled.’ Fortunately, and with some difficulty, I was able to restrain myself.... Initially, the other members asked me to serve as foreman which I politely declined since I was sensitive to the need to avoid having my presence dominate the deliberations.").

26. See Hrones, The Lawyer as a Juror, 30 Boston B J 37 (May-June 1986); Fellner, Appeal Justice Sits on Drug-Trial Jury, 104 LA Daily J 81 (March 25, 1991); Fricker, Grand Jurors v. DA; Five Lawyers Land on Grand Jury, Lock Horns with DA, 75 ABA Jour. 32 (Dec. 1989); Olender, Handicapping the Jury, 24 Trial 74 (Feb. 1988). See also Goldberg, Caution: No Exemptions, ABA Journal 64 (Feb. 1996) (including a survey of ABA lawyers on whether attorneys should serve and describing the experiences of lawyers who served on juries, including one who inadvertently took control of the deliberations).

27. See, e.g. People v. Tyburski, 445 Mich. 606, 622, 518 N.W.2d 441 (1994) ("[I]t was incumbent on the trial judge to conduct a thorough-going examination of veniremen who indicated they had been exposed to [pre-trial publicity in this case]. Yet without exception, the trial judge relied on perfunctory and generalized questions, which elicited responses from these jurors solely on their subjective ability to ignore pretrial publicity and be fair and impartial . . . . Where pretrial publicity is as extensive and is likely prejudicial as it was here, the constitutional right to an impartial jury requires an examination into objective as well as subjective indicia of non-prejudice."

28.705 ILCS 305/14.

29. People v. Sims, 244 Ill. App. 3d 966, 612 N.E.2d 1011 (5th Dist. 1992).

30. See Davis v. Minnesota, 511 U.S. 1115, 128 L. Ed. 2d 679, 114 S. Ct. 2120 (1994) (Ginsberg, J., concurring in denial of certiorari) ("I write only to note that the dissent’s portrayal of the opinion of the Minnesota Supreme Court is incomplete. That court [observed that] [o]rdinarily..., inquiry on voir dire into a juror’s religious affiliation and beliefs is irrelevant and prejudicial, and to ask such questions is improper.’").

31. See Society of Society of Separationists, Inc. v. Herman, 939 F.2d 1207 (5th Cir. Tex. 1991), reh’g, en banc, granted, 946 F.2d 1573 (5th Cir. 1991) and adhered to, aff’d, en banc, 959 F.2d 1283 (5th Cir. Tex. 1992), cert. denied, 506 U.S. 866, 121 L. Ed. 2d 135, 113 S. Ct. 191 (1992) (atheist juror not required to take religious oath in order to serve, reversing decision to hold such juror in contempt of court); United States v. Chapin, 515 F.2d 1274, 1289-90 (1975), cert. denied, 423 U.S. 1015, 46 L. Ed. 2d 387, 96 S. Ct. 449 (1975) ("[Q]uestions about political affiliation should be disallowed, even in a case involving politics, except where preliminary questioning, such as that conducted here, had indicated that a potential juror might, or possibly would, be influenced in giving a verdict by his political surroundings. There were no such indications with regard to the jurors here.").

32. Connors v. United States, 158 U.S. 408, 414-16, 39 L. Ed. 1033, 15 S. Ct. 951 (1895).

33.If the court finds that a juror has intentionally misstated the facts in response to a question on voir dire, and that a challenge for cause would have been successful had the answer been true, it has been held that the jury’s decision should be reversed in its entirety. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984).

As the Eighth Circuit concluded in United States v. Tucker, 137 F.3d 1016 (8th Cir. 1998). however, "We have counted the votes in McDonough. [A] juror’s dishonesty is not a predicate to obtaining a new trial. The focus is on bias."

Ted A. Donner is the managing member of Donner & Company Law Offices LLC, a lawfirm serving small to medium sized businesses in Cook and DuPage County, Illinois. In addition to a number of law review and bar journal articles, Mr. Donner is the author of two national treatises for West Group, the Attorneys Practice Guide to Negotiations (with the Honorable Brian Crowe) and Jury Selection: Strategy & Science (with Richard Gabriel). He is a graduate and current instructor at Loyola University Chicago School of Law, where he was nominated for lifetime membership in the Alpha Sigma Nu National Jesuit Honor Society in 1990 and honored by the Moot Court Honors Board in 1999 for his "years of outstanding dedication and support" in 1999).


 
 
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