We know you didn't get any sleep the night before voir dire. What about the jurors?
When lawyers think about voir dire, we think about jurors' past history. Everything we read reminds us that a juror's past experience fundamentally shapes how he will hear and understand what we say. If you represent an elderly woman who fell and was injured, a juror who cared for his frail mother for twelve years is going to respond differently than will a healthy young man who never knew his grandparents.
Ask about the past, yes, but don't forget the present. History may help tell us how a juror might connect with your case, but the question whether she can connect at all has a lot more to do with what she did last night, and over the last week. Consider:
- Fatigue. Tired people don't think very well. In a recent study, people who had stayed up all night and then looked at pictures remembered 19% fewer pictures than a well-rested control group did.
- Lack of caffeine. Many people drink caffeine all day, and then find themselves in a jury box for hours with no coffee in sight. A 2004 study concluded that "[o]ne of the most profound signs of caffeine withdrawal was impaired behavioral and cognitive performance, although memory was not affected."
- Too long between cigarettes. In a 2003 study of nicotine withdrawal in pilots, "all tests recorded an impairment of cognitive functions during abstinence," leading the researchers to conclude: "Abrupt cessation of smoking may be detrimental to flight safety."
- Hangover. In case you needed a cite for this, researchers in 2003 concluded that "alcohol hangovers have a negative effect on cognitive functions."
- Low blood sugar. Research has found "significantly more negative" performance on cognitive and emotional tests after blood sugar bottoms out.
- Hormones. You won't want to hear me say this, but for many women, it matters when you're talking to them. This study found, for example, that "both short-term and long-term memory for words (30-word learning task) and abstract figures (abstract visual learning task) were mildly impaired in the premenstrual phase."
- Depression. A survey last week found that one in six Americans and Canadians had been diagnosed with depression -- that's diagnosed, not suffering from. This study of the elderly found "a significant association between depression and reduced cognitive function."
Some of this you can ask about. (Not the hormones, I know.) Is there a baby in the house? Does anyone work third shift, or two jobs? Many jurors, when the judge asks what they do, will mention one of their jobs but not the other.
You can be candid about caffeine and cigarettes: You'll have to go a long time without them, and for some people that's hard. Is anyone concerned about that?
Some of it you can't ask, but you'll hear about, if you listen. A depressed juror, for example, is likely to give you a few clues.
The rest you'll have to watch for. This is the kind of thing that "Watch the jury" means: who is tired? Am I looking at the face of drugs or alcohol? Who is distracted, or anxious? Who just looks out of it?
(Photo by strph at http://www.flickr.com/photos/strph/129221597/)
