Real Justice for Real People VOIR DIRE Volume 1 Issue 8 December 2010 1
TABLE OF CONTENTS ABOUT THE COVER ART... 4 ABOUT THE ARTIST... 4 ABOUT STRITMATTER KESSLER WHELAN COLUCCIO... 6 ABOUT KAREN KOEHLER... 7 VOIR DIRE... 9 PROLOGUE... 9 Trial Diary... 9 Trial Day Two... 14 THE ORIGINS OF VOIR DIRE... 19 THE CONSTITUTIONAL RIGHT TO AN UNBIASED JURY... 21 ENTER JURY BIAS... 24 Trial Diary... 24 VOIR DIRE MISTRIAL THE STORY OF A JURY THAT WAS TOO BIASED... 32 LEGAL RULES GOVERNING THE EXERCISE OF CHALLENGES... 38 LEGAL RULES OF PEREMPTORY CHALLENGES... 39 LEGAL RULES OF CHALLENGES FOR CAUSE... 45 ADJUSTING THE ATTORNEY MINDSET IN APPROACHING VOIR DIRE... 48 Trial Diary... 50 TIPS TO ESTABLISH A HUMAN CONNECTION... 56 LISTEN WITH HEART, MIND, BODY AND SOUL... 58 GIVE EVERYONE AN OPPORTUNITY TO SPEAK... 60 2
WAYS TO KEEP TRACK... 62 EXERCISING PEREMPTORY CHALLENGES... 64 EXERCISING CHALLENGES FOR CAUSE... 66 CLARIFICATION IS PROPER, REHABILITATION IS NOT... 70 JURY QUESTIONNAIRES... 75 Trial Diary... 75 COURTROOM INTERNET SEARCHES OF JURORS... 80 WE MUST DO OUR BEST THEN MOVE ON... 82 Trial Diary... 83 3
ABOUT THE COVER ART Thirty is part of Jose Ramirez s series that documents the invisible the workers and people who are seldom acknowledged for their contributions. In the end, their work is what helps make our world a better place. ABOUT THE ARTIST Jose Ramirez is an artist, teacher and the father of three girls, Tonantzin, Luna, and Sol. He received a BFA (1990) and an MFA (1993) in art from UC Berkeley. In 2001, he received the Brody Award/Getty Visual Arts Fellowship. Jose has illustrated seven children s books, including Quinito s Neighborhood, Frog and Friends Save Humanity, Zapata para los Niños, Papito Dios, and Quinito Day and Night. Among his commissions, he has worked for several nonprofit organizations, hospitals, cities, film and television companies and cultural centers across the country. In addition, he has lectured and exhibited his work in museums, universities, galleries and cultural centers in New York, Washington DC, San Francisco, San Diego, Texas, Japan, and Mexico. For more info please visit ramirezart.com. You may contact him at joseram@aol.com or 323.377.4967. 4
Jurors see Karen as a person a human being who cares about the people she is representing. The tips in this booklet can help a trial lawyer improve his/her technique in jury selection. Mary Alice McLarty, Esq. Dallas, Texas Vice-President of the American Association for Justice One of the most comprehensive and intelligent discussions of the issues facing all plaintiff lawyers in voir dire. Rick Friedman Friedman Rubin, Washington and Alaska Author of Rules of the Road and Polarizing the Case Voir dire is arguably the most important part of any trial and yet the most difficult for a trial lawyer to master. Karen Koehler has beautifully written this guide to voir dire that perfectly combines the law, the art and the science of jury selection. This is a must read for any trial lawyer interested in winning! David Wenner Snyder & Wenner P.C., Phoenix, Arizona Co-developer of the Jury Bias Model 5
ABOUT Stritmatter Kessler Whelan Coluccio (SKWC) is a premier Pacific Northwest law firm devoted to representing plaintiffs in personal injury and wrongful death claims. Experienced in trial, SKWC attorneys welcome tough, complex cases. Our verdicts and settlements include product liability, nursing home, government liability, medical negligence, highway design, premise and construction site, class action, vehicle crashworthiness, major vehicle collision, maritime and aircraft crash cases. The attorneys at SKWC are committed to making a difference in the lives of our clients, in helping to ensure justice for the injured, and in contributing to the legal community through leadership and education. 6
ABOUT KAREN KOEHLER Photo by Meryl Schenker Photography Nicknamed The Velvet Hammer by some of her adversaries, Karen is known for her creativity, tenacity and trial skills. Mother of Cristina, Alysha and Noelle, she has a particular place in her heart for representing families who have lost loved ones due to intentional or negligent acts. Among those cases is Kime v. City of Seattle, a wrongful death settlement for Kristopher Kime s family that found the city responsible for enhancing the danger of the 2001 Seattle Mardi Gras riot. Laws have changed because of the stories of clients whom she has represented. In Ethel Adams v. Farmers Insurance Co., a psychotic man hit a car that crossed the center line and crashed into Ethel. Farmers said it was not an accident and denied coverage. As a result of case publicity, the Office of Insurance Commissioner drafted Ethel s law that prevents insurance companies from ever again claiming that an accident was not an accident in uninsured motorist cases. 7
Karen is a prolific speaker and writer, an author of nationally published legal treatises and an adjunct professor at the University of Washington School of Law. Her publications include: Litigating Major Automobile Injury and Death Cases, Thomson West (c) 2007; Litigating Minor Injury Soft Tissue Cases, Thomson West (c) 2001; Handling Motor Vehicle Accident Cases Volume 4 case files, Thomson West (c) 2004; Voir Dire to Verdict, 5th Edition Chapter Author Washington State Bar Association; The Jury Trial; Washington Motor Vehicle Accident Litigation Deskbook (c) 2009 Washington State Bar Association. She has written and co-produced two DVDs. Preparing for Deposition and the upcoming Preparing for the Defense Medical Exam. Both distributed by Trial Guides. Karen received the Trial Lawyer of the Year Award in 2005 from the Washington State Association for Justice. She served as its president in 2007-08. She has also held leadership positions in the American Association for Justice and is a member of the America Board of Trial Advocates. Karen is listed in The Best Lawyers in America and regularly listed as a top 100 Super Lawyer and a top 40 personal injury lawyer by Washington Law & Politics Magazine. Karen s newest cause, is the creation of the Spinal Cord Injury Association of Washington (SCIAW). This non-profit organization is a chapter of the Christopher Reeve Foundation. For more information, please visit www.sciaw.org. Learn about the different facets of Karen at her personal website, KarenKoehler.com. Visit Karen s blogs. Karen blogs about everything under the sun at KarenKoehlerBlog.com. At SpinalCordInjuryLawBlog.com, Karen blogs about all things related to spinal cord injuries. You can also follow her on Twitter @ K3VelvetHammer. 8
VOIR DIRE By KAREN KOEHLER 1 PROLOGUE Trial Diary 2 There are a lot of lawyers in the courtroom. I m seated at the apex of the right angle of counsel tables. To my immediate right is the doctor defendant, then defense counsel T.W., their jury consultant G.H., and farthest from me is defense counsel R.R. To my left is our side. T.W. has nails that extend an inch beyond her fingers and are filed almost to a point. They are painted blood red. I am fascinated by them. They remind me of the wicked old Chinese emperors who probably enslaved my forbearers. They click quietly as she gracefully fiddles with her pen and flips through pages. I am impressed with her adeptness. I look down at mine. One is chipped from gardening yesterday. They are all cut to different lengths by my 99 cent drug store nail clipper. I don t think I ve filed my nails in well, that is too much information for sure. But you get the picture. I am definitely way behind T.W. Did I mention that her hair is beautifully groomed, died henna red as well. Yep you guessed it. Mine is tied back with a pony tail holder from the same drug store. 1 Several years ago the SKWC law firm created a voir dire brief. We file it along with our trial brief in cases where we have voir dire concerns. The brief was primarily written by Ray Kahler and Garth Jones though many of us have contributed to it over the years. Portions of that brief are used in this booklet. 2 Excerpt from my trial diary of a medical malpractice case in October 2010. 9
Now lest you think I am a total slouch, R.R. comments on my lovely new high heel pumps and the color of my legs (okay sounds weird but I run outside and it has been sunny lately). She is wearing what look like tap shoes with stockings. I hate stockings. Yes, this is how we get ready to do battle we engage in feminine small talk while we sharpen our blades. In his typical highly efficient manner, Judge G has already signed an order on the motions in limine and declined to give our agreed-to jury questionnaire. The judges are reluctant to give these anymore. We cannot stipulate to confidentiality on behalf of the jurors due to public disclosure laws. They must be filed with the court. The bailiff hands us carbon copies of the jury information forms. Forty-five jurors 3 walk in before I have even written down all of their basic information. Judge G asks the hardship question. Three quarters of the jurors raise their hands. I ve never seen so many. Financial hardship, health, travel, work or home commitments. He excuses 16 who have financial hardship and travel plans. We take a break and the bailiff announces that they are pulling 15 more jurors from the pool. They arrive and this time only three ask for hardship of which one is granted. So we have our panel. I m watching their jury consultant. He is pleasant looking, smiles a lot and is dressed in a suit. He looks pretty much like a lawyer though he s a Ph.D. He doesn t have a computer or ipad or anything high tech. He has paper charts spread over 3 Technically venire is the panel of prospective jurors. For purposes of this article, the terms juror, jury, prospective juror, and venire will be used interchangeably. 10
the table and sticky notes that he writes on and places in the various squares. At first he spends more time playing with his stickies than he does watching the jurors. We are given a first round of 40 minutes and my law partner Kevin goes first. He jumps right into jury bias/medical malpractice issues. It is not pretty. For those of us who think that we must be doing great because we ve managed to beat off tort reform, here are two words for you. Wake Up. Most of the jurors believe in tort reform. Two jurors are removed for cause. R.R. goes next and it is clear what her marching orders are from the jury consultant. She is engaged and tuned in to the jurors. She has good presence and direct eye contact. She has a very high voice which is a bit disorienting. It is not pleasing to the ear, but she projects clearly and loudly. After awhile you get used to it because she is so skilled. But it is not her strongest feature. R.R. smiles all the time. There is almost never a time when I see her without a smile on her face, even when Kevin is doing voir dire. Anyway, back to her marching orders do nothing. This is a tough jury. The last thing she wants to do is talk about anything that will alert us to more jurors who should be removed for cause due to bias. For forty minutes, she asks innocuous questions like who has been in a lawsuit, people s experiences with pediatricians or doctors. And occasionally she will use a juror to score a point like getting a medical technician to agree that medical tests are not 100% accurate. I get essentially nothing from her 40 11
minutes other than the message that they are happy with this jury. We have a short break. Kevin comes up and asks me what I m going to do. I say I m not telling. He thinks I m being coy. In truth, I never know what I m going to say until I say it. I never know exactly how I m going to do something until I do it. I start off by telling the jurors that I am only there for voir dire because I m supposed to be starting another trial. I ask them if they are okay with both G.H. and I being in trial on a limited basis. I can feel G.H. and the defense lawyers suck in their breath. I don t expose him for being a consultant. And they breathe. The jurors and I then launch into a discussion about money, morality, a doctor s reputation, and burden of proof. You know the feeling you have when you are throwing ingredients together in a pot, stirring it and it actually is looking just like it should. I am bad at following recipes and like to just throw things in and stir. Sometimes the results are not good, gooey waffles come to mind. My poor kids. Other times, I m actually amazed it is just as I ve dreamed. Well, that is what is happening. I can feel the defense lawyers and G.H. behind me absolutely still and riveted. They want to object so badly but I haven t done anything wrong. Virtually half of the jurors are with me in that pot and we are percolating towards that moment. A few of them hop out because they aren t as deeply committed. But the rest of us a complete dozen in fact are still in that pot and we are bubbling. What have we agreed to: Where large money damages are being 12
sought and a doctor s reputation is on the line, they all share a strong moral conviction that the burden of proof should be beyond a reasonable doubt or certain not more probable than not. We are about to overflow. We have confirmed this position with utter clarity. I say the magic words request that these jurors be removed for cause. T.W. jumps up and makes a long speaking objection that maybe the jurors are mistaken about their positions and how this could be. The judge stops her. I m thinking he s going to tell her she can now ask questions. But he doesn t just stop her. He stops everything. I m actually not tracking with him as he tells us that we are going to take a break now. He tells the jury that there is a verdict that has now come in from the jury who has been deliberating after a three week trial. He tells them we will resume tomorrow and excuses them. I hope my mouth isn t agape as I remember to put on my mask of utter pleasantness. T.W. is probably clicking her nails in utter delight. Judge G makes a kind comment that we can pick up tomorrow and I can continue along this line of questioning. I don t even know what he is saying because I am so disoriented. Whaaaaa? I move for cause with twelve jurors in the pot and the court calls a recess? The verdict comes in. It is an almost $30 million dollar verdict in a highway design quadriplegic injury case. I understand that the verdict had to be dealt with. But whaaaaaaaaaa. So T.W. leaves the court with her jury consultant and they will 13
spend all night figuring out how to reverse the effects of my witch s brew. Trial Day Two I get to the courthouse and begin my walk up the stairs to the ninth floor. Half way there I notice something. I m moving fast. In fact, I m striding up those stairs. If my legs were longer I d be taking them two at a time. Apparently there is a lot of adrenaline flowing. I m more irritated than I let on. The full cast of characters has returned. Before the jury comes in I make a little speech, reorienting everyone to what happened yesterday. The judge catches my eye he does not need reorienting. I make my record. I also comment that T.W. s objection/speech after I moved for cause was completely inappropriate. Which it was. Judge G lets me have my say, doesn t comment, and brings in the jury. I begin reorienting the jury. Number two can t hear. His headset isn t working. He fiddles with it. I start and stop two times. Then we go to a commercial break while the bailiff runs out to get another unit. This is what happens for the five interminable minutes (a thousand and one a thousand and two a thousand and three ) while she is gone. Nothing. Not a single word is spoken. We are in suspended animation. Judge G does some work from the bench. I am seated in a chair directly below him with no one to whisper to. It is awkward. But when you think about it if Judge G was to tell a story or joke or anything, #2 would be left out in the cold. So instead, we all are left out there shivering with him. 14
The bailiff delivers a working headset and I begin. We go back to yesterday and the position of the unflinching dozen that they will not be able to follow the court s directions. Anyone change their minds since yesterday not a single one of them. I give them every opportunity. And then move for cause again. T.W. takes the stage. She s quite at home on it. She has a nice theatrical voice and is far more animated than R.R. She gets right up to the edge of being over the top. She moves around well, has an extremely expressive face and uses her hands and fingernails to communicate. Except she is a little restrained in the beginning because she is holding a script in front of her. Yes, it is a script most assuredly created by G.H. last night. She begins by singling out #59. Yesterday he disclosed he was a juror in a medical malpractice case tried by R.R. 14 months earlier. I know the case ended in a defense verdict. They have him in a chokehold. Either: a) he ignored the law and applied a beyond reasonable doubt standard to that case; or b) he was wrong yesterday to say that he couldn t follow the law in this case. She is kind and smiling and pointed and leading and cajoling. She disparages the discussion of 49/51 percent or any percent relating to burden of proof. And tries to talk about a reasonable person and being open to other peoples discussions in the jury room. She tries to give him an easy out. But she has to use the phrase more probable than not as compared to beyond a reasonable doubt. And no matter how she does that dance, I can see the jury nodding at me. I was not playing games with them yesterday. 15
R.R. objected to my use of these words and forced me to speak in hypothetical but here they are using the same words. It takes about five minutes for her to get #59 to flip. She goes to juror number two the one who is the most outspoken in the box on tort reform. He also said that doctors recently saved his life and he was beholden to them. She apologizes for picking on him but says she feels this is better than lumping them all together (like I did -- bad me). She uses the same questions, the same techniques but they don t work quite as well. She has to lead a little too much. He weakly flips. But she is now 2-0. T.W. senses that she is getting in the groove. She is becoming more flamboyant to the point where she reminds me of someone. Hmmm. Who could that be. Why Bette Midler of course! She flitters on to number one. She listens and follows up well, weaving in her same line of questioning and techniques. #1 is gentle spirited and so soft spoken that almost no one can hear her. She doesn t flip. T.W. doesn t recognize that her routine has its limits. It begins to seem like she s brow beating number one. Her red talons/nails are flashing as she moves closer towards her prey. I find myself again being mesmerized by them, but manage to shake myself away from their spell. Your Honor I begin to say but before I can finish, Judge G tells her: Move to the next juror. T.W. talks to each of the remaining twelve one by one though she shortens up her spiel and cuts a bit more to the chase. 16
When it is time to talk to the jurors in the back rows, she marches right back there getting up close and personal like the good show woman she is. Here s what she hears: I would try to follow the instructions, but can t promise you that I will. I need to stick to my moral conscience. The line is too thin between beyond a reasonable doubt and more probable than not. More probable than not is not a strong enough standard in a case like this. I would disregard the court s instruction. She knows her momentum is slipping away. She mimics a juror waltzing into a deliberation room and saying hi y all I m going to ignore the law. You wouldn t do that right? She chortles. She gets a few laughs. She is entertaining. But I don t feel that she s connecting in a warm way with the jurors. Half an hour passes before she finishes. Judge G asks if the defense will agree to the cause challenge for any of the twelve. The three of them consort and T.W. announces that four of the jurors should be excused. They are hoping that will end the carnage. Without any explanation. Without asking the jurors any of the awful questions some judges do (i.e., you would follow the law wouldn t you if I told you to), Judge G dismisses five more. Nine of the twelve. We sit quietly while they collect their belongings and leave our room. 17
I still have about five minutes left of my thirty minute round that started yesterday. What to do. Well, I m not going to change the subject because nine people just left the courtroom and we can t just switch gears without acknowledging that. So I guess we ll dwell in the moment a little more. I retake the stage from Bette I mean T.W. There had been some discussion by counsel that I may have picked on some of you, that you were unfairly targeted. Do any of you feel that way that you didn t have a say? They shake their heads no at me. They are fine. I move into the subject talking about the need to have the scale even before we begin so one side isn t unfairly disadvantaged. A juror tells me she actually feels she may be biased in favor of the child. I embrace this, knowing she will be booted off by the defense. I have to make the point to establish once and for all the credibility of the plaintiff. Regardless if you are too much for the child or for the doctor and cannot put aside the bias, you shouldn t sit on this case. T.W. spends her half hour the same way that R.R. did her round. Innocuous questions about eye sight, photographs, computers and other disjointed topics meant to send hidden messages. She continues to be overly animated. I sense the jurors have become more guarded. I don t think they liked how she manipulated the twelve jurors who were challenged for cause. They shaked and shimmied with her and some of them flipped. But they all could see that she was performing a magic trick. *** 18
THE ORIGINS OF VOIR DIRE Prior to the thirteenth century, accusatorial trial practices existed throughout Europe, such as trial by ordeal or trial by battle. Over time, inquisitorial practices and the use of juries became more widespread, although certain practices we now take for granted -- such as not punishing jurors for returning a verdict of not guilty -- did not develop in England until the late seventeenth century. Across the Atlantic, the proper function of a jury became a topic of heated debate between Federalists and Anti-Federalists in 1787. The draft Constitution presented to the thirteen states provided for a right to trial by jury in criminal matters, but allowed for that trial to take place anywhere in the state where the crime occurred. The Anti-Federalists opposed this viewpoint, arguing that only a local jury (drawn from the vicinage ) could properly dispense justice. Members of the vicinage were thought to be those in the best position to already have an opinion as to the accused s character, some knowledge of what had occurred, and a greater stake in the outcome of the case. Naturally, the Federalist counterpoint was that a just verdict was one delivered by a disinterested group, free of prior knowledge or bias. The Federalist position prevailed; thus, the concept of trial by an impartial jury displaced the traditional practice of juries of the vicinage. 4 4 Major Ann B. Ching, Who Questions the Questioners? Reforming the Voir Dire Process in Courts-Martial, 204 Military Law Review 182, (2010). Citations omitted. 19
For centuries, jurors were primarily white male citizens who owned property. In eighteenth-century England, writes a student of the period, probably 75 percent of the population was rigorously excluded from common juries. They were virtually only seen in court as defendants. Special juries -- made up of persons of an even higher class than usual, or of experts in a commercial or professional field were sometimes used to the exclusion of ordinary citizens. The promise of the Civil War amendments to the Constitution that racial minorities would have full rights of citizenship, including the right to serve on juries went unkept for a century. Women also were ineligible for jury duty, in most states, until about 1940. The key man system under which the court clerk or marshal would limit jury summonses to those considered reliable persisted in the federal courts until 1968, when Congress, in the Jury Selection and Service Act, required for the first time that jurors be selected at random from a fair cross-section of the community. A 1975 Supreme Court decision 5 adopted that standard as a constitutional requirement for state court juries. 6 Whoever undertakes to set himself up as a judge in the field of Truth and Knowledge is shipwrecked by the laughter of the gods. Albert Einstein 5 Taylor v. Louisiana, 419 U.S. 522 (1975). 6 Hon. William L. Dwyer, In the Hands of the People (2002). 20
Enter the concept known as voir dire. Scholarly sources quibble about the root of the terminology. In Latin, voir derives from videre which means to see. It may be similar to the Latin word verdict. Voire (with the e ) also is an old French word that means truth. There is a newer version of voir that means to see. Dire in French means to speak. 7 The newer French version loosely translates into tell what you see. And since eyes don t lie, the expression means speak the truth. This mystery is worthy of its own law review article. For our purposes, we will adopt the definition of Black s Law Dictionary (9th Edition), which says: voir dire (vwahr deer also vor deer or vor dir), n. [Law French to speak the truth ] (17c) THE CONSTITUTIONAL RIGHT TO AN UNBIASED JURY Our federal and state constitutions provide that the right of trial by jury shall be preserved and remain inviolate. 8 This right requires an unbiased and unprejudiced jury. 9 The trial is not constitutional if a juror is biased or prejudiced and remains on the jury. 10 It is a fundamental tenet of our 7 Cassell s French English Dict. (1982). See State v. Smith, 182 Ariz. 113, 115, 893 P.2d 764 (1995) (means literally to see to speak ). 8 U.S. CONST. amend. VII; WASH. CONST. art. I, 21. 9 State v. Davis, 141 Wn.2d 798, 824, 10 P.3d 977 (2000); see also State v. Parnell, 77 Wn.2d 503, 507, 463 P.2d 134 (1969) ( The right to trial by jury assumes the right to an unbiased and unprejudiced jury. Accordingly, if one or more members of the jury panel are biased or prejudiced, the constitutional right to trial by jury is denied. ); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S. Ct. 845, 78 L.Ed.2d 663 (1984) ( One touchstone of a fair trial is an impartial trier of fact -- a jury capable and willing to decide the case solely on the evidence before it. ) (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 71 L.Ed.2d 78 (1982)). 10 Allison v. Dept. of Labor and Ind., 66 Wn.2d 263, 265-66, 401 P.2d 982 (1965). 21
judicial system that inherent in a jury trial is a right to an unbiased jury. 11 The very essence of due process would be denied if one or more members of a jury panel were allowed to remain as jurors while harboring a bias or prejudice toward one of the parties. 12 The voir dire process is crucial because it is the only means by which counsel and the Court can ensure that these constitutional principles are satisfied. Federal statutes set forth the minimum requirements for jury selection in federal cases: 28 U.S. Code 121 1861 (declaration of policy) 28 U.S. Code 121 1862 (discrimination prohibited) 28 U.S. Code 121 1866 (selection and summoning of jury panels). In particular subsection c sets forth grounds for exemption, disqualification, excuse and exclusion. 28 U.S. Code 121 1870 (challenges). Three peremptory challenges allowed. Multiple parties are considered as a single party for the purpose of making challenges. Court may allow additional peremptory challenges and permit them to be exercised separately or jointly. In addition the states have enacted laws that set forth the minimum requirements for jury selection in state cases, for example: 11 Cheney v. Grunewald, 55 Wn. App. 807, 810, 780 P.2d 1332 (Wash.App.,1989). 12 Allison, 66 Wn.2d at 265-266. 22
Rev. Code Wash. 2.36.110 (duty of judge to excuse biased, indifferent or inattentive jurors); Rev. Code Wash. 4.44.130 (kind and number of challenges); Rev. Code Wash. 4.44.150 (definition of challenges for cause); Rev. Code Wash. 4.44.160 (general challenges for cause: failure to meet statutory juror qualifications; physical or mental defects); Rev. Code Wash. 4.44.170 (particular challenges for cause: actual and implied bias; health/physical problems); Rev. Code Wash. 4.44.180 (Definition of implied bias). Note that an employee of any party is subject to challenge for cause. This is an especially important provision when a defendant is a large employer or governmental entity that is likely to have employees in the jury pool. Trial courts have broad discretion in shaping the limits and extent of voir dire. 13 It serves the dual purpose of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. 14 The ultimate test is whether the court permitted the parties to ferret out bias and partiality. 15 13 Murray v. Mossman, 52 Wn.2d 885, 887, 329 P.2d 1089 (1958); Lopez-Stayer ex rel. Stayer v. Pitts, 122 Wn. App. 45, 50-51, 93 P.3d 904 (2004). 14 Mu Min v. Virginia, 500 U.S. 415 at 431, 111 S.Ct. 1899 (1991). 15 Lopez-Stayer ex rel. Stayer v. Pitts, 122 Wn. App. 45, 50-51, 93 P.3d 904 (2004). 23
ENTER JURY BIAS 16 Trial Diary 17 The best voir dire of the day is done by Judge McD. After asking a few preliminary questions, he reads the neutral statement which starts off like this: On June 7, 2004, airline pilot Captain DM struck his head while attempting to board a Holiday Inn airport shuttle bus. At which point juror number 14, a 72 year old retired Boeing engineer hollers (yes hollers) out something along the lines of how disgusted he is that people won t take personal responsibility for their own actions and have to blame someone else the man should have watched where he was going! At which point juror number 1, a kind looking 48 year old respiratory therapist, exclaims I agree that is ridiculous! At which point, the judge proclaims (yes proclaims), Stop right there! I glance at the defense lawyer G he is as still as a piece of rock. Probably clapping inside with delight. I keep my face absolutely expressionless. I m wondering if this is going to turn into a full scale jury revolt before the case has even begun. Judge McD has everyone s attention. And the courtroom is completely silent. Up to now he has been jovial, warm and kind. He sternly tells the jury that he will not tolerate them 16 Attorneys and trial consultants Greg Cusimano and David Wenner developed the American Association for Justice National College of Advocacy s Overcoming Juror Bias program. Their seminal body of work involves a much greater in depth look at the issues than is provided in this booklet. See, www.jurybias.com. 17 Excerpt from my trial diary in a negligent hotel bus doorway case in August 2009. 24