Jury selection is more art than science – a quest to get to know a large pool of potential jurors and identify any bases upon which they cannot or, from your client’s perspective, should not serve on the jury.
After an adverse verdict, we sometimes find that one or more of the jurors should not and would not have served on the jury had we known more about them. These issues generally come to light when the losing party is investigating grounds for a new trial and discovers that jurors were not entirely forthcoming during voir dire questioning.
The failure of jurors to provide full and accurate responses entitles a party to a new trial, right? Not always, or even usually. Without question, parties are entitled to full and accurate responses to their voir dire questions to help them make informed decisions in challenging jurors for cause and in exercising their peremptory strikes. When jurors fail to answer questions correctly, parties are denied that right.
More often than not, a motion for new trial or an appeal asserting “misconduct” by a juror in failing to provide accurate and complete information in response to voir dire questions is unsuccessful. This may be because of a failure to demonstrate probable prejudice or because the alleged failure to respond accurately is found to have been waived or to be the result of counsel’s failure to ferret out the desired information. This blog post will discuss the standards for obtaining post judgment and appellate relief based on juror misconduct. Understanding these standards provides the best position to seek relief if things go badly, but also increases the likelihood of getting an ideal jury.
Beginning at the end – the standard on appeal. Trial courts are vested with broad discretion in determining issues regarding juror qualification and misconduct because they are in the best position to hear a prospective juror and observe demeanor. As a result, the trial court’s rulings will not be disturbed on appeal unless the trial court is shown to have clearly exceeded its discretion. So, how do you show the court exceeded its discretion?
Make your record. The appellate court can only review what is in the record on appeal, so a complete record is essential to the success of any appeal. The record of voir dire must be sufficient to support your arguments. Even in the face of a specific request from counsel (or instructions from the court) that the jurors identify themselves when responding to a question, they often forget to do so. If the jurors responding to a question are not identified, it is extremely difficult after the fact to determine whether a particular juror who should have responded did so and, more importantly, to demonstrate that fact. Consequently, counsel should identify by name each venire member who responds to a question and when following up to obtain specific details.
Properly support your post judgment motion. A motion for new trial is required to preserve for appeal the issue of juror misconduct in failing to respond accurately to voir dire questions. The movant must present evidence in support of the motion to prove that a juror responded untruthfully or failed to disclose relevant information that was requested. That sounds relatively simple, but demonstrating that the questions required a response and that the juror’s response was actually inaccurate can be difficult. Depending on the nature of the information allegedly withheld or misstated, the necessary proof may take the form of certified copies of court records, affidavits or even live testimony.
Establish probable prejudice. In addition to proving that a juror failed to respond or responded inaccurately, to be entitled to a new trial, the movant must also prove probable prejudice – that is, that the juror’s failure to accurately respond might have prejudiced the movant. The determination of whether probable prejudice resulted from the juror’s failure to respond accurately does not end there, however. The factors a court may consider in making the probable prejudice determination include, but are not limited to: the temporal remoteness of the matter inquired about, the ambiguity of the question, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter asked about.
Do ask about all relevant information. Venire members are not required to volunteer information that is not specifically requested. They cannot be expected to reveal information not elicited by the litigants and are allowed to remain silent until they are asked a question demanding a response. Consequently, if a party fails to inquire specifically about a matter during voir dire, he is not entitled to relief on that basis thereafter. The failure to use due diligence in testing jurors as to qualifications or ground of challenge is an effective waiver of those grounds of challenge. That is true even if the basis of disqualification is statutory.
Don’t rely on the court’s or another lawyer’s questions. Defendants are often placed in a difficult position in conducting voir dire. If plaintiff’s counsel has conducted extensive voir dire, the judge and the venire members may grow impatient with what they view as redundant or unnecessary questions, and defense counsel may be tempted to forego certain areas of inquiry. Due diligence, however, requires the defendant to explore and follow up on all possible areas of qualification and potential bias. A party who relies upon the examination by the court or the opposing party does so at his peril.
Do ask questions that are specific and precise, but not too limiting. A juror’s failure to answer a question on voir dire furnishes no basis for complaint where the question as applied to that particular juror does not clearly call for an express response. Questions must be specific and precisely tailored to require a response, but not so narrow as to unduly limit the inquiry.
Don’t ask questions that are ambiguous or subject to misunderstanding. If a question is ambiguous, or phrased so that it is difficult to understand, a juror’s failure to respond will not support any relief. The language used in questioning the venire must be easily understood and the terms carefully defined. Courts have found that terms like “plaintiff” and “defendant” may be ambiguous or confusing to potential jurors. Similarly, the phrase “a lawsuit for damages” could reasonably be interpreted by a juror as summarily excluding collection cases from consideration. Further, where all the jurors seemed to assume that “filing a lawsuit” meant “going to court,” the jurors’ failures to respond regarding prior lawsuits were attributed to misunderstanding of the questions as they related to the jurors.
Do follow up. Counsel must diligently follow up seeking to obtain more specific information. A party is not entitled to a new trial based on information that was not disclosed by a juror where counsel could easily have elicited the desired information or cleared up any doubts by asking follow up questions.
Don’t wait to investigate or challenge a juror’s qualifications. It is incumbent upon the parties to both timely investigate a juror’s qualifications and challenge a juror upon learning of a potential ground of disqualification. The failure to challenge a juror on a timely basis on any ground of disqualification that is known or through due diligence that should be known results in waiver. A party who is on notice of a potential ground of disqualification but fails to challenge the juror until after judgment is not entitled to relief. Even when a party learns of a potential ground of disqualification after the jury is seated, he waives the objection if he waits to raise it post-trial rather than asserting it immediately.
The limits of due diligence. In this day and age, information about venire members is one Google search away. That reality may place a higher burden on lawyers conducting voir dire. Do lawyers have an obligation to investigate the jurors before trial? A lawyer or paralegal could sit in the courtroom with a laptop or iPad and search the jurors’ names to locate criminal convictions, prior lawsuits, social media posts, etc. Courts around the country are increasingly less likely to grant a new trial based on juror disqualifications that could have been discovered before trial with a simple internet search. In fact, some jurisdictions have imposed new standards that require online research during the voir dire process. While the Alabama courts have consistently held that a party waives any grounds that could have been discovered through the use of due diligence, the appellate courts have not specifically held as of yet that due diligence requires any independent investigation of the venire members before or during trial, via the internet or otherwise. However, the language used in some cases suggests that such a requirement may exist. Arguments that due diligence requires counsel to explore electronic and other publicly available information about venire members will likely gain momentum as more information becomes easily accessible.
In conclusion, a review of the case law shows that the questions venire members are often asked do not uncover the information needed to strike the ideal jury. If identifying good jurors (or removing bad ones) is key to a good result at trial, and if getting full and complete information in voir dire is key to identifying good and bad jurors, counsel should focus on formulating the most precise questions possible and on exercising due diligence in uncovering information.
Obtaining post judgment or appellate relief based on a juror’s failure to respond to voir dire questions is challenging, to say the least. By making the proper inquiries on the front end, counsel may actually get all the information needed to strike that ideal jury, or at least to be in the best position to seek post judgment relief if they do not.
This article was originally published in the Spring 2015 edition of Alabama Defense Lawyers Association Journal, Vol. 31, No. 1.