We're discussing jurors who lie so they can get on the jury, and yesterday's post discussed the federal standard for getting these cases overturned. This one turns to the real questions: whether we can keep "stealth jurors" off juries in the first place, and whether we can learn anything from our own reactions to them.
An ounce of prevention
How do you find these folks ahead of time, or at least minimize the harm they do? You can't always; give up on the idea that it's possible. Certainly it can't be done with familiar home remedies. Subscribe to the Deception Blog (which collects the extensive research in this area) and you'll slowly but surely become convinced that liars do look you in the eye, they don't always shift in their seats, they can fool even experienced questioners -- even questioners whose sole aim is to discover deception, much less trial lawyers who have to juggle that job with the many other goals of voir dire.
Some things you can do, imperfect as they are:
1. Ask about experiences and behaviors. Questions about experiences and behaviors are the strongest way to get past unconscious bias, as I've said many times. But they can also be a tool to get at bias that's consciously concealed. A juror like this will likely recognize a straight bias question, no matter how often it's asked and in how many varied ways, and pride himself on heading it off. But the same juror might be willing to tell stories from his past, or tell about web sites he comments on, without realizing he's telling you about his biases.
2. Fight your own stereotypes. It looks like Woman in Black's juror lulled her by telling her he had a sister with mental illness. I'm not remotely questioning her voir dire (she says the juror specifically said his sister's condition would make him want to be compassionate and fair), but it's a reminder to all of us that a given experience might not mean what we think it means to the juror. To continue with the mental illness example, a juror with a mentally ill relative might feel deep compassion for the mentally ill -- or he might resent the lack of personal responsibility that often characterizes mental illness. Or both.
3. Listen for vocabulary. Jurors with agendas may speak in a code they've forgotten is code. I've written before that it's valuable, and fairly easy, to learn some of the language that extremists speak about issues relevant to your case. The Countenance Blog, for example -- the one that advocated lying to get on a jury this week -- has categories for "black crime," "Hispanic crime," "minority crime," "black extremism," "Chicano extremism," and on and on. Fifteen minutes spent there would teach you a lot about what words and concepts might be red flags in a case involving race or immigration.
4. Ask about silence. Remember Judge Gregory Mize's experiment asking silent jurors why they'd been quiet. One of them said she was the defendant's fiancee! She had not answered yes to the question "Do any of you know or in any way acquainted with me, any of the parties, witnesses or attorneys in the case?", or to the question, "Have any of you, a close friend or close relative been the victim of, a witness to, or charged with a criminal offense within the past ten years?" Those silent denials must have been knowingly false, but somehow the follow-up question got the truth out.
5. Prepare the group. In the same way that you might prepare jurors to hold to their views and deal with disagreement, you can prepare them to respond to what essentially is an invader. In the cases where we know a juror lied about bias, it's usually because another juror reported it. An extra voir dire question and a line in your closing, reminding them of how important voir dire is and how you're relying on their candor, might be enough to help the rest of the group report the liar.
None of these things will fully protect you, but they may help.
A lesson, maybe, in why we're so mad
I want to ask another question, though, one that may shift the emphasis to a more positive, and perhaps more broadly applicable, jury lesson. Why are we so troubled by jurors who lie? Woman in Black understandably says her juror story "is REALLY bothering me." Gideon, retelling the story, says "What’s the point, you ask? I don’t know. It just got me steamed up enough to post about it." Stephen Gustitis of The Defense Perspective, commenting on Gideon's post, calls lying jurors "simply despicable" before offering good thoughts and advice.
It's not like these people have never seen lies before. We all have, so often that it rarely gets us really mad. In many ways we live in a culture of lies, where executives who resign "for personal reasons" and cancelled flights because of "equipment changes" are the constant junk food of our information diet. When Bill Clinton said he never had sex with that woman, or Scooter Libby said he didn't gossip about Valerie Plame, or Martha Stewart said selling that stock was her own idea, some people were upset -- but millions of others shrugged and moved on.
So why do lying jurors keep us awake at night? Partly because a lying juror puts a lawyer personally at risk, and we take it personally. Scott Greenfield gets that part exactly right:
It's like having a saboteur in the case, a hidden time bomb waiting to go off. No matter what happens at trial, how good or bad the evidence turns out to be, this juror is absolutely determined to sink you because, well, because that's his goal in the jury room. And you don't know it, and can't do anything to stop it.
But I want to suggest there's something else at work here too, a deep belief we share with all those other jurors who don't lie. People believe the courtroom is a place where justice happens.
You see it over and over, from people of all types and backgrounds: normal skepticism toward many other institutions, but pure idealism about the justice system. Jaded executives stare at me in shock when judges make mistakes, or witnesses lie. They can't believe it when lightning doesn't strike an opponent who is late with discovery, or a judge who takes two years to rule on a motion. These people aren't stupid; they're some of the smartest folks I work with. But they believe, beyond reason or evidence and beyond their usual cynicism, in the justice system and its power for good. I think that when lawyers are startled by another lying juror story, we're showing that at some level we believe that too.
And like most personal insights, you can translate this to your jury work. When you look at a jury panel, it's helpful to remember that most of them at some level -- like you, at some level -- believe in the purity of the courtroom, whether they'd say it that way or not. Jurors' expectations for you, your client, the witnesses, themselves, and the judge are very, very high, even the jurors who look like and act like and think they are cynics. In the moments when you can rise to that level in your trial, you're fulfilling one of their most deeply held ideals. And you're taking something good, and helpful, from the story of the lying juror.
News note: Saturday was such a day for stories about jurors who lie that I missed one. The Baltimore Sun reported on a hung-jury mistrial where the prosecutor learned, talking to the jury afterward, that a juror's brother had pled guilty to first-degree murder. The story implies, and it's very likely, that the juror had to evade at least one voir dire question (more likely several) to find her way onto that jury.
(Photo by Christina, technochick's 11-year-old daughter, at http://www.flickr.com/photos/technochick/595491058/; license details there.)