What is that quiet juror really thinking? Ask her.
We've seen recently that jurors often have a stream of thoughts they're not sharing with you. We've also seen that judges often discourage jurors from talking, either by asking them questions designed to evoke silence or by instructing them not to speak up at all unless they deem themselves biased. At least one judge, though, has been not only actively trying to get jurors to talk, but also writing down what happens when they do. It turns out they have a lot to say.
Judge Mize's experiment
When District of Columbia trial judge Gregory Mize (now retired from judging and a Judicial Fellow for the National Center for State Courts) saw a post here about judges asking leading questions, he sent me two papers he wrote. Both describe different aspects of his experiment, which he began in 1998. The papers are "Be Cautious Of The Quiet Ones," in the Spring 2003 issue of Voir Dire magazine, and "On Better Jury Selection: Spotting UFO Jurors Before They Enter The Jury Room," in the Spring 1999 issue of Court Review magazine. (I don't have the magazine's permission to post the Voir Dire article yet, but I'll update when I do.)
Even before he started focusing on quiet jurors, Judge Mize's voir dire was unusual. He had co-chaired the D.C. Jury Project, which had just released a report recommending significant revisions to the jury selection process. One way he implemented his group's recommendations in his own courtroom was to move to individual voir dire of jurors, since he and others believed jurors would speak more freely alone than they would in a large group.
To make the individual voir dire manageable, Judge Mize asked his questions of the whole group, and asked jurors to silently write down the number of any question they would answer "yes" to. Then he and the lawyers talked to each juror individually about the questions that juror had noted.
"Could you explain?"
Remarkable enough, but things got really remarkable when Judge Mize started asking the quiet jurors about the questions they hadn't planned to respond to:
During the individual interview, I would ask the jurors who had not responded to any of the general questions, “I notice you did not respond to any of my questions. I just wondered why. Could you explain?” If I did not get much of a response, I would say, “Is it because the questions did not apply to you?”
The answers were well worth the effort. Some examples:
- "I am afraid to answer questions and cannot remember dates very well."
- "[In a gun case] I can’t stand to talk about guns. My grandson was killed with a gun so the topic of guns makes my blood pressure go up."
- "[In a narcotics case] Eight years ago I was a juror but I was excused because my brother committed suicide as a heroin and cocaine addict. He got drugs easily. Therefore I was and am angry. I’d start out with a bias in this case."
- "I’ll tell you straight up, I am an alcoholic. I’m starting to shake already today. [His breath clearly smelled of alcohol.]"
- "I cannot be fair in this case. The plaintiff’s attorney represented me in a personal injury case some years ago."
- "In a personal injury case, an elderly man appeared to be unusually shy and fearful of speaking up. He refused to answer my repeated questions about whether he would speak up during final deliberations. He eventually stammered, 'Yes, I guess I would. I am no expert about anything. I… I…'"
In the first of the two articles, describing the first year of this approach in criminal trials, Judge Mize sets out his results in numerical form. In 27 of the 30 trials where he tried this, at least one initially silent juror was dismissed for cause based on answers he or she gave to Judge Mize's further inquiry. "[O]ne cannot help," Judge Mize concludes, "but get a strong sense of the essential and revealing juror data that can be obtained by interviewing citizens who do not initially respond to open-court voir dire questions."
(Photo by Faraz Usmani at http://www.flickr.com/photos/faraz27989/390967242/; license details there.)
