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I, The Jury, Part II: Voir Dire

As we noted yesterday, we are going to run a series of reader reports on their jury service, in hopes of giving those folks who have little or no experience on this front (a group that includes both V & Z) some useful insight into the process. Yesterday, we covered the general predisposition against jurors with certain kinds of experience or expertise. Today, it's readers' experience with voir dire:

R.R. in Pasadena, CA: I served as the foreperson on a jury trial a year before the pandemic; it was a civil trial that took about three weeks. I think everyone should serve on a jury at least once so they understand how the justice system really works, it's not like TV cases at all... though there was a bit of drama in our case that felt ripped from the flatscreen. There are a few things that I think will be key for the Trump documents trial, based on what I went through:

The judge matters, a lot. Our judge made the trial a pleasant experience, as she had obviously been on the bench for a while and knew what we had to go through. Several times, she made the trial move in ways that cut through the lawyer nonsense that would have dragged the trial out. It looks like Donald Trump is again getting Judge Aileen Cannon, who stretched the procedures a whole lot when Trump's case was in front of her before, and is also an inexperienced judge who hasn't previously handled such a big case. I'd expect a lot of messiness in the trial procedures, and she's already shown that she'll bend over backwards to support Trump which could cause a lot of angst. She also may do things that make the jury's job harder, from confusing jury instructions to procedures that make the trial stretch out or get messy.

Selecting the jury will be a large bit of drama. Voir dire is meant to separate out jurors that will be good or bad for either side, as well as jurors that it's obvious can cause trouble. In my case, the juror who was interviewed just before I was made clear statements about how he was biased towards one side, in a pretty obnoxious way. He got bounced by the judge instead of either side. When I was asked, I expressed my own biases, but it was clear that I would try to be honest and set those aside based on the evidence presented. The plaintiff lawyers discussed me directly (I could tell because they kept looking at me) and picked me for the jury... the defense, whom I felt the bias against, didn't fight it because they asked the questions about if I could be fair and were satisfied. There were a lot of examples of that going on in the questioning, and it worked as we ended up with a pretty balanced jury that decided the case based on the evidence.

In most cases, people want to get out of jury duty. In Trump's case, there will definitely be people trying to get onto the jury as well. I can see liberals who want to stick it to Trump and MAGAs who want to save Trump trying to get on. I can also imagine MAGAs who want to avoid it because they may be worried that they will have to rule against him based on the evidence, and either don't want to do it despite it being the right thing to do or worry about the consequences when their MAGA friends learn they were on the jury. People will be scared to serve on this jury; there could be threats against them whichever way they rule, and there will be people who see it as a chance to be famous. And all of this will be overseen by an inexperienced judge who may be in the tank for Trump, making it difficult for the prosecution to get an impartial jury.

The foreperson will be critical. Studies have shown that a foreperson can sway the jury to their own opinion very easily; I learned this by reading about a foreperson's duties the night after I was selected. I took great pains to make sure that we went through the evidence and testimony systematically, and I always spoke last so my thoughts weren't dominating the discussion. It worked out well, and everyone was happy (though it took a bit longer to go over everything than some people wanted). The interesting thing is how I was selected foreperson: I sat at the end of the table and, once we were all seated, was the first person to say something to start things off. I didn't plan that, but it turns out those are the two biggest ways to become the foreperson... I'm just organized and always sit at the end of tables in meetings, so I did my usual plus I had had more weekly meetings than anyone else there. A person who wants to control the jury decision could try this to put themselves in charge of the proceedings. The foreperson could then direct the conversations and evidence reviews in ways that help whoever they want to win. Just being "the leader" can be enough to sway some jurors, especially if the foreperson is good at swaying people's opinions. I'm assuming the jury picks the foreperson in federal trials as well, so becoming foreperson is a popularity contest. Another thing that helped me become foreperson was that I was part of the largest group of jurors going to lunch together, and I told them about the things I did which fell naturally into "leadership" territory. I wasn't campaigning to be foreperson, but the social aspects definitely helped, especially since there was a city council member who had been a foreperson before (twice, I think) but who went to lunch on their own. It would have made more sense for them to be selected instead of me.

I also expect a highly professional presentation from the prosecutors, and a likely clown show from Trump's lawyers unless he gets some really good ones soon. The lawyers can most definitely turn a jury against a side. In our case, the defense lawyers were obviously not litigators and kept doing silly/stupid stuff; it didn't affect our decision but we definitely noticed and joked about it. The plaintiff attorneys were super sharp and didn't make any mistakes or leave openings for the defense to exploit. It's easier for the jury if the prosecution lays out a clear, concise story of the case and backs it up with evidence, as that gives a good structure to the discussions. If the defense puts up nonsense, that makes it even easier to see clearly what the decision should be. Again, the jury instructions matter at this point. Judge Cannon could easily undermine the prosecution case with her instructions, or cast enough doubt about the law for the jurors that they can't get past reasonable doubt.

I really would be concerned about someone on the jury who wanted the trial to go a certain way who used the trial weeks to grease the wheels to become foreperson and then turned the whole thing their way. It might lead to a decision not based on the evidence, or to a raucous jury that fights a lot and can't make headway. An experienced judge can head that kind of thing off, including removing any jurors that appear to be causing issues, but that will be missing in this case. Judge Cannon is a huge concern as well; she already tried to help Trump from the bench and got smacked down for it. If she learned her lesson then the trial will be fair (but possibly disorganized, since she's new); if not, she could try to torpedo the prosecution in many ways. A messy trial, with appeals for judge issues or a jury that's got internal problems, could easily make Trump look like a victim. But the justice system usually works even with flaws like this, so maybe it will all turn out fine and there will be a fair trial and just decision based on the evidence instead of people's feelings or politcal desires.

One thing I should note: I was put on the jury despite my four advanced degrees including a Ph.D. in astronomy. That actually came up in voir dire, I was asked about what I do and my educational background came up. The defense attorney slipped up and asked me about "astrology"... I made some kind of joke that got everyone including the judge to laugh. I still ended up being picked, when common wisdom is lawyers reject anyone with a Ph.D. by instinct. I guess the lesson is not to be funny and personable during voir dire if you want to avoid serving on a jury.

G.K. in Blue Island, IL: I've served on a jury within the past five years, and the short answer is: "No, nothing about that experience would give me any insights into what might unfold in the Trump documents case."

There's a reason associated with that though, that is itself an insight (I feel). Despite voir dire, juries are essentially a random assemblage of citizens, and—probabilistically speaking—they manifest a bell curve of critical thinking skills, human interaction skills, emotional maturity, empathetic capability, etc.

Although Henry Fonda's character in Twelve Angry Men is framed as a hero and champion of American justice, I'm sure it happens just as often that justice is decidedly not served because a single hold-out dug in their heels and the others in the room were not gifted with the skills to lead them to a non-biased, evidence-based conclusion.

Paramount to the process, I think, are the judge's instructions to the jury, as well as the judge's response to any questions or requests from the jury. This is why the selection of Judge Cannon is problematic for some, since she didn't seem to exhibit a good knowledge of relevant laws and legal concepts earlier in the documents investigation.

In short, despite federal prosecutors' success rate at securing convictions, I feel like anything could happen given the extraordinary natures of the defendant, the judge, and the Florida jury pool.

R.E. in Birmingham, AL: I served on a jury about 13 years ago. It was a civil case between two long-divorced people who apparently spent all their time and money suing one another. It was icky.

When we got to the jury room, I was almost instantly selected as jury foreman based on the fact that I was the only juror who took notes and, you know, paid full attention. In our case, the ex-husband had sued the ex-wife because she called the sheriff on him when he came to her house, and he spent the weekend in jail. In his instructions to us, the judge had explained the elements that the plaintiff had to prove in order to prevail. I wrote those on a whiteboard, and then turned around to face my peers on the jury. Most of them were looking at me like I had been speaking Greek, and then engaged in an animated conversation about who they thought should win, based entirely on their individual senses of "right and wrong."

We eventually reached what I thought was the only defensible verdict, in part by persuasion and in part because some of them just got tired of the process and went along with anything that would get them out of the room.

To give you a sense of the level of understanding and analysis that was taking place, I have to include an event that happened during the trial itself. We were on a break, and a fellow juror sidled up to me and asked "What happens if we find him guilty?" He was asking me what would happen if we rendered a verdict of "guilty" against the PLAINTIFF in a CIVIL case. Good Lord.

The gravity of the Trump trial is on a whole different level, of course. Hopefully, the process for selecting jurors will be more rigorous, and the jurors will take their jobs much more seriously. That being said, it isn't always enough to have a "slam dunk" case to win at trial. Once the jury room door closes behind them, the jurors are on their own, and anything can happen. The wrong mix of personalities could lead to an outcome unsupported by the facts or the law.

G.M. in Laurence Harbor, NJ: Having served on a grand jury and on several juries in New Jersey and Pennsylvania, nothing surprises me. In Pennsylvania, the defense attorney noticed an elderly member of our jury was slumped over and brought it to the attention of the judge during opening remarks. The judge called the juror several times using her juror number. After a few calls with no results, he directed the bailiff to check her out. Juror #7 was okay, she was just asleep. When asked about it, she responded effectively: "I'm sorry my hearing aid is dead. If I didn't have to be here so early, I would have been able to stop and get new batteries."

H.S. In Lake Forest, CA: I served on a jury in San Diego County in 2016 after having been naturalized a few years prior. Despite the case interfering with my busy work schedule, I felt inclined to participate to fulfill my civic duty as a relatively new citizen of the U.S.

The jury selection process was interesting. The court questioned about 50 prospective jurors on various aspects related to the case, which involved drug and gun possession by a previous felon. In the end, there were a lot of dismissals of prospective jurors with too strong a view of pro- or anti-gun rights. In addition, anyone with a past traumatic experience involving law enforcement, guns or drugs was also dismissed. This resulted in 12 jurors, including myself, who were Caucasian (9), Asian (1), or Latino (2), with the defendant an African American. The 5-10 African-American prospective jurors and also a similar number of Latinos were all dismissed due to describing past traumatic experiences with law enforcement and/or guns.

Following the court proceedings, we went into deliberation. I, for one, was not impressed by the case made by the prosecution. But I also learned that, as a scientist, my definition of "reasonable doubt" apparently does not match that of the general public.

If I came away with one general conclusion that could relate to the Trump case, it is that the jury selection process is by no means perfect. Of the 12 jurors that made it through, three were outright racists, one lied to the judge on whether he ever had a traumatic experience with guns in his past, and most just wanted to get it over with as fast as possible. But there will be a few good people on any jury. So these few good people's view point and their ability to persuade the jurors of lesser intellect will likely determine the outcome of Trump's trial. Based on my past experience, I am much less convinced than you that an unbiased jury can be assembled in Florida.