Voir Dire; Oh, Dear!

A case that comes to trial can be won or lost based on the jury that is selected. How a jury is selected depends on the statutes, rules of the court in which the trial is being held and, to some extent, on the judge involved in the case. These laws and rules control how jurors are initially called for questioning and what qualifications they must have. The number of jurors involved in the trial and the number of alternates are set forth in these rules and laws.

The jury pool consists of many more potential jurors than will be needed for the trial. From this pool, the people will be selected in a process called voir dire. This is a French legal term which means “to speak the truth.” This process involves the potential juror answering questions from both the plaintiff and the defendant and, in some jurisdictions, the judge. The goal of the process is to decide if the person is qualified and suitable to serve on the jury. Of course, the attorneys will also be working to find jurors who would be more likely to be sympathetic to their side of the case.

Jury selection has become so important that a new group of professionals called jury consultants has evolved who make their living by studying body language, backgrounds, and responses to voir dire questions so that they can advise the attorneys as to which jurors to pick that would be more likely to agree with their theory of the case. In fact, there is a new television show called Bull, starring Michael Weatherly, which is modeled on this type of jury consultant.

During the jury selection process, some lawyers and their paralegals, use internet networking sites to learn about the potential jurors. Using computer tablets, smart phones, and other portable electronic devices, a person’s background can be quickly searched while he is being questioned. This information may be useful in determining how the person may decide on the issues at hand. Since this internet vetting is not subject to court oversight, questions have been raised as to whether or not court rules are being violated. This is an uncharted area of procedural law so it will be interesting to see how the various jurisdictions will deal with these adjuncts to the “voir dire” process.

Each potential juror is asked questions relating to their backgrounds, life experiences and, if allowed by that particular court, questions of law. For example, a plaintiff on a medical malpractice case would not want to have a juror who is a medical doctor who believes that all doctors are trying their best and there is no such thing as medical malpractice. A defendant on that type of case would not want a juror who believes that most doctors are money hungry, uncaring, or a juror who believes he was a victim of medical malpractice himself. The attorneys will ask questions designed to unveil any bias, especially those that would be contrary to their side of the case.

Each side has the right to ask that certain people not be allowed to sit on the jury for legal reasons. These are called cause challenges. Each side will also be allowed a certain number of peremptory challenges which will allow them to eliminate any potential juror for almost any reason.

In the past, lawyers could use the peremptory challenges for any reason and they did not have to explain their rationale. However, several Supreme Court cases have placed limits on this strategy. For example, in Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court held that in criminal cases, the prosecutor could not use peremptory challenges against members of the defendant’s race. In Powers v. Ohio, 499 U.S. 400 (1991), the holding was applied to white defendants who were objecting to a prosecutor’s attempt to exclude black jurors.

Subsequent Supreme Court cases extended the rules of criminal cases to civil cases and other cases have also made it illegal to use peremptory challenges based solely on race or gender.

So what happens if an opposing party objects to a peremptory challenge by claiming it is based on race or gender? The Supreme Court dealt with this issue in Purkett v. Elem, 514 U.S. 765 (1995). A party making a peremptory challenge only needs to come up with a race/gender neutral reason for the challenge. The opposing party will then have the burden of proving purposeful racial or gender discrimination—not an easy task. The trial judge will make a decision after both parties argue their side of the issue.

It is likely that the Supreme Court will apply the holding of Batson to other constitutionally protected classes such as religion and ethnicity, and, in fact, some lower courts have already done this.

I was involved as a defendant in a jury trial once, so far, in my career. It was a very complex trauma case where the patient had multiple injuries and had to undergo several operative procedures. The abdomen, chest, and spine were all operated on at various times. This patient, after several months in the hospital, finally went home and was doing well. Unfortunately, over a year later, while she was on vacation in a foreign country, she developed an infection and she died before ever getting back to the United States.

The physicians involved in her care in the foreign country were sued and they settled. Two of the surgeons involved in her care after the original injuries were also sued. I was one of these surgeons. After 16 years, the case finally went to trial. There were very complex surgical, anatomical, and medical issues and I was fearful that the jury would never be able to sort these out; after all they were not surgeons!

After a two week trial, the jury deliberated for less than a hour before returning with a complete defense verdict. I was allowed to speak with the jurors after the trial and it was clear that they understood the issues very well. In fact, several of the jurors apologized to me for having to sit there two weeks; they had determined the case was without merit early in the trial and they felt sorry for me. My faith in the system soared.

Most will agree that there are flaws in our adversarial legal system which is critically dependent on a jury of our peers; but even with the flaws, it is still the best system in the world.

Dr. Weiman’s website is www.medicalmalpracticeandthelaw.com

Dr. Weiman is the author of Medical Malpractice and Fundamental Issues In Health Care Law

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