Tuesday, May 15, 2018

HISTORIC NEW RULE: JURY SELECTION AND IMPLICIT BIAS

The Washington Supreme Court is the first court in the nation to adopt rules aimed at eliminating implicit bias from jury selection in both civil and criminal cases. The new General Rule 37 (effective April 24, 2018) dramatically alters practices and procedures regarding exercising peremptory challenges. It remains to be seen whether this new rule will become a model for rule changes elsewhere.

Under the new rule, a party’s objection to the exercise of a peremptory would only need to cite to the rule, such as “Object your Honor, General Rule 37.” Then, any further discussion of the matter would be conducted outside the jury’s presence. In responding to the objection, the party must state the reasons for the peremptory challenge.
Under Batson, “the person challenging the peremptory must ‘make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” However, under GR 37, “(t)he court need not find purposeful discrimination to deny the peremptory challenge.” Instead, if the judge decides that “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” The “objective observer” is defined by GR 37 as someone who “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.”

Regarding reasons offered for showing a race-and-ethnicity-neutral basis for the peremptory, GR 37(h) provides a list of presumptively invalid reason for exercising peremptories, such as “having prior contact with law enforcement officers.” Additionally, GR 37(i) states that if the party exercising the peremptory wants to use a juror’s questionable conduct (“juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers”) as justification for the peremptory, the “party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner.” If neither the judge nor opposing counsel corroborate the juror’s behavior, the grounds for the peremptory shall be invalid

In making the determination of whether race or ethnicity was a factor in exercising the peremptory challenge, GR 37(g) provides a nonexclusive list of relevant factors paralleling those referred to in  Foster v. Chatman, 136 S.Ct. 290 (2015), such as “whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors.”
The following is the full text of the new rule:

GR 37 JURY SELECTION      

(a) Policy and Purpose. The purpose of this rule is to eliminate the unfair exclusion of potential jurors based on race or ethnicity. 

(b) Scope. This rule applies in all jury trials.      

(c) Objection. A party may object to the use of a peremptory challenge to raise the issue of improper bias. The court may also raise this objection on its own. The objection shall be made by simple citation to this rule, and any further discussion shall be conducted outside the presence of the panel. The objection must be made before the potential juror is excused, unless new information is discovered.      

(d) Response. Upon objection to the exercise of a peremptory challenge pursuant to this rule, the party exercising the peremptory challenge shall articulate the reasons the peremptory challenge has been exercised.      

(e) Determination. The court shall then evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied. The court need not find purposeful discrimination to deny the peremptory challenge. The court should explain its ruling on the record.      

(f) Nature of Observer. For purposes of this rule, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.      

(g) Circumstances Considered. In making its determination, the circumstances the court should consider include, but are not limited to, the following: 

(i)             the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it;
(ii)           whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;
(iii)          whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;
(iv)          whether a reason might be disproportionately associated with a race or ethnicity; and
(v)           whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.  
   
(h) Reasons Presumptively Invalid. Because historically the following reasons for peremptory challenges have been associated with improper discrimination in jury selection in Washington State, the following are presumptively invalid reasons for a peremptory challenge:
               (i) having prior contact with law enforcement officers;
(ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling;
(iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime;
               (iv) living in a high-crime neighborhood;
               (v) having a child outside of marriage;
               (vi) receiving state benefits; and
               (vii) not being a native English speaker.      

(i) Reliance on Conduct. The following reasons for peremptory challenges also have historically been associated with improper discrimination in jury selection in Washington State: allegations that the prospective juror was sleeping, inattentive, or staring or failing to make eye contact; exhibited a problematic attitude, body language, or demeanor; or provided unintelligent or confused answers. If any party intends to offer one of these reasons or a similar reason as the justification for a peremptory challenge, that party must provide reasonable notice to the court and the other parties so the behavior can be verified and addressed in a timely manner. A lack of corroboration by the judge or opposing counsel verifying the behavior shall invalidate the given reason for the peremptory challenge.  [Adopted effective April 24, 2018.]


Thursday, April 5, 2018

JURORS' PRACTICAL ADVICE FOR TRIAL LAWYERS


Thank you Mike Zuckerman for sending me the Honorable Amy J. St. Eve’s and Gretchen Scavo’s Cornell Law Review article entitled “What Juries Really Think: Practical Guidance for Trial Lawyers.” I’ve already passed the article on to my students at Seattle University Law School, and in the future I will use its findings when discussing my beliefs about what is appropriate and inappropriate conduct for trial lawyers. The following is the article:
“What do juries really think about lawyers? What makes jurors tick? What do lawyers do that irritates jurors? What can lawyers do better in the courtroom from the jury’s perspective? These are the questions at the heart of this article, which provides useful insight gleaned from more than 500 jurors who served in federal district court trials in Chicago, Illinois from 2011 to 2017. In this article, we present our analysis of questionnaire responses from those jurors, as well as their verbatim commentary, and distill both into practical guidance for trial attorneys looking to improve their trial skills.”

Thursday, March 29, 2018

BOB DEKLE’S REVIEW OF JURY SELECTION HANDBOOK

George (Bob) Dekle

Bob Dekle recently reviewed the new book Jury Selection Handbook as follows:

An Excellent Exposition of a Difficult Topic

Of all the portions of the trial, the part that I hated the most was jury selection. I had a keen sense of both how important it was and how inadequate I was to do a good job of it. I had not been practicing law very long before I decided that in most cases the trial is over when the judge says “Swear the jury.” If at that point you have the wrong jury, there is not much you can do—you’re not going to win. If, on the other hand, you have the right jury, there are many things you can do from that point forward to snatch defeat from the jaws of victory.

Despite the fact that it was a challenge to conduct a good jury selection, it was easy to see when other lawyers were conducting a bad jury selection. After a couple of decades of watching other lawyers fall flat on their faces, and falling flat on my face more times that I care to recall, I finally learned how to conduct a moderately competent jury selection. It wasn’t spectacular by any means, but at least I didn’t embarrass myself, and I was usually able to weed out the problem jurors. If only there had been a book like Jury Selection Handbook back when I was a rookie trial advocate. I would have read it, re-read it, learned from it, and chalked up W’s in quite a few cases that I had to put in the L column.

Jury Selection Handbook is a well-organized, easily understood explanation of the nuts and bolts of how to go about picking a jury. The pages are filled with gems of practical wisdom that it took me years to learn in the school of hard knocks, and the books prescriptions for organizing, planning, and executing the voir dire examination are on the mark.

One important point the book stresses, and a point which many young lawyers seem to miss, is that the primary purpose of jury selection is juror elimination. The most important thing you do in voir dire is to identify and eliminate the jurors who are going to torpedo your case. All other considerations are secondary to this objective.

The book does make a few points that I’d like to quibble with, however. On pages 164-165 it recommends liberal use of open-ended questions. Open-ended questions always frightened me because they completely surrendered control of the situation to an unknown party. Pages 152-153 tell the reader not to worry about tainting the pool, and this might not be a problem in a large jurisdiction where hundreds or even thousands of jurors might be summoned at a time. In the small jurisdictions where I practiced, open-ended questions would often taint an entire pool, delaying a trial for a month to six weeks before the next jury was scheduled to come in. A couple of zingers I’ll never forget:

Q: How is it that you know the defendant? A: Well, I don’t know him personally, but when I worked at the Constable’s Office, we served a lot of warrants on him.

***

A: No, I can’t be fair in this case. [A rape case].

Q: And why is that? A: Because the defendant raped my daughter.

I’m not a big fan of the forced-choice form of questioning recommended on pages 165-169. A forced-choice question works like this:

Q: Some people say cases only go to trial when there are genuine issues to be resolved. Others say that cases go to trial simply because one side or the other is too hard-headed to admit they’re wrong. Which of those opinions do you have?

I’m willing to wager that a large percentage of potential jurors on any panel never gave the issue a thought, and asking such a question only serves to embarrass them. I’m also willing to wager that a lot of potential jurors are like me—they resent being forced to choose among preselected answers which almost certainly do not reflect the nuances of a thoroughly considered opinion. When presented with a binary forced-choice question, my usual response is to get irritated and say “None of the above.”

One point the book made which I don’t think was made forcefully enough was on page 164 when talking about body language. In emphasizing the importance of picking up on nonverbal cues, the book listed a number of nonverbal actions and gave the conventional wisdom as to what those actions meant. In one sentence at the end of a paragraph, the book makes the point that the conventional wisdom of what these actions mean “ain’t necessarily so.” As Philip Houston and Michael Floyd say in "Spy the Lie: Former CIA Officers Teach You How to Detect Deception," such cues are not signposts pointing unerringly at what the conventional wisdom says they stand for. They are instead simply clues that the interrogator might want to look further to see whether they are truly signaling what they are supposed to stand for.

For example, the arms crossed stance is supposed to signal that the listener isn’t receptive to what you’re saying. Maybe. It may be that your listener is simply cold. Or he may be a narcissistic young man who wants to put his fists under his upper arms to enhance the size of his biceps. Use common sense and don’t slavishly follow the conventional wisdom about body language signals. You've been reading body language all your life. Where do you think that "gut reaction" that the authors talk about on pages 288-289 comes from?

Other than the foregoing quibbles, I found Jury Selection Handbook to be an excellent, informative book. I was responsible for supervising and training young prosecutors for over 20 years, and I taught a prosecution clinic for 10. If I were still in the business of training young prosecutors, I'd put this book on my required reading list.

Friday, March 23, 2018

"MOST COMPREHENSIVE ANALYSIS OF JURY SELECTION IN THE MARKET"

Judge Michael Marcus (ret.)

Judge Michael D. Marcus (Ret.) wrote this review of Jury Selection Handbook

Jury Selection Handbook is the most comprehensive analysis of jury selection in the marketplace and a “must” read for every lawyer, regardless of experience. Ronald Clark and Thomas O’Toole are to be congratulated for their exhaustive discussion of every phase of voir dire, from its preparation, to the strategies behind successful voir dire, to the evaluation of jurors and to the legal tactics incidental to voir dire. The new lawyer will find comfort in the discussions on the basic rules and premises for jury selection; the veteran lawyer will enjoy the chapters on the subtleties and psychology behind voir dire. All will find the book a necessary addition to their legal library.



Sunday, March 18, 2018

PROFESSOR RONALD L. CARLSON REVIEWS JURY SELECTION HANDBOOK

Professor Ronald L. Carlson


Ronald L. Carlson, Professor at University of Georgia Law School, reviewed Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection. Professor Carlson has written 16 books on evidence, trial practice and criminal procedure, including Carlson on Evidence, which is in its 5rh Edition. He has lectured on evidence and litigation throughout the country. The Georgia Trial Lawyers Association presented him with a Lifetime Achievement Award. This merely scratches the surface of Professor Carlson’s achievements and his biography can be found here.
The following is Professor Carlson’s review of Jury Selection Handbook:
The central place of jury selection in the American litigation system is unquestioned.  It is the key determinant when assessing whether a lawyer will be successful at trial.  Jury selection has been correctly described as the most difficult challenge in litigation.  Fortunately for attorneys and law students alike there is a little gem which effectively demystifies the process.  This is Clark and O’Toole, JurySelection Handbook.

Law students will profit from some of the basic explanations of nuts and bolts topics like the methods for asserting peremptory challenges.  Lawyers will be alerted to tips for assessing leadership potential.  When peremptory challenges run short for the litigator, it is critical that she prioritizes her strikes.  The importance of doing so is distilled in the phrase from the text:  “In other words, if you are going to have a bad juror on the jury, you at least want it to be someone who is not going to be an opinion leader.”  Advice for spotting such persons then proceeds.

Commendable wisdom is typically shared on practical topics which appear throughout the book.  These include strategies for questioning jurors, challenges for cause, techniques for evaluating prospective jurors, and leaving the jury at the end of voir dire with a positive view of your case.  The authors are especially capable of imparting this advice.  Ronald Clark has informed lawyers and law students for years about pretrial skills, opening statements and closing arguments, evidence law strategies, and cross-examination tactics.  Thomas O’Toole is an experienced jury consultant who has provided jury selection services in a broad array of cases.  As wise practitioners of their professions, the authors supply a handy checklist at the end of the book.  The checklist provides a review of the important subjects contained in the text.  

The Jury Selection Handbook will be used by law students as well as attorneys.  For the academic arena, the book incorporates a special chapter of assignments for experiential learning.  Law students in prosecutor or defense clinics or those helping in legal aid offices will be admirably prepared to assist in their respective offices by completion of the experiential exercises.  The exercises also prepare the student to face the challenge of courtroom practice with his or her future law firm or other legal office. 

In one of the chapters the authors impart advice on how to make a favorable impression with jurors by being friendly, avoiding distracting attire, and converting nervousness to energy.  In similar fashion, this text makes a highly favorable impression on the reader by its comprehensive and practical approach to jury selection.