Jury Selection: Asking The Difficult Questions

We all know that there are potential jurors on any venire whose past experiences or biases may prevent them from accepting our client’s claims.  Many lawyers are reluctant to explore those sorts of issues, because they believe discussion of information that is not helpful to their case might poison the remaining jurors.  I suggest that jury selection never changes a juror’s mind, nor does jury selection create issues where issues do not previous exist.  Instead, the function of jury selection is actually to “de-select” jurors who hold views that are destructive to our client’s version of events.
In the case of Colette Johnson, et al. v. Allstate Sweeping, LLC, et al., our clients’ decedent was operating his automobile at night, on E-470, returning home from DIA when he rear-ended a street sweeper that had been traveling in the left lane of E-470 over the Parker bridge at a speed of approximately 3 – 5 miles per hour.  There was also evidence that our decedent was using his cellphone at or near the time of the collision.  Thus, jurors who held the opinion that all drivers who rear-end another vehicle are 100% liable for the collision, as well as jurors who believe that all drivers who are involved in an accident when using a cellphone had to be identified, and if possible, removed from the jury panel.
The questioning of the venire to obtain these attitudes is counter-intuitive: you must ask the question in its most pure form in order to see which jurors hold the most obviously destructive opinions.  When we are experiencing our “trial brains,” we are always reluctant to say or suggest anything that does not forward our client’s interests.  However, in voir dire, we must do so to locate those with attitudes that will make the juror reluctant to find in our favor.  Do not dance around your main issues: embrace them.  After we gave assurances to the jurors that we wanted them to tell us things even if they believed we did not want to hear those things, and we assured them that we were not trying to change their minds, we then asked the following questions of our panel:
  1. Are there any jurors who believe that if a driver of a vehicle rear-ends another vehicle, no matter what the circumstances, that the rear-ending driver is always 100% responsible for any accident?
  2. Are there any jurors who believe that if a driver of a vehicle is using a cellphone in any manner and a collision occurs, that the driver using the cellphone is always 100% responsible for any accident? 
Not surprisingly, we got a fair number of jurors to agree with one or both of those questions.  Asking the question in a very simple, direct and absolute way provides you with a better chance of establishing grounds for a challenge for cause under C.R.C.P. 47.  Even more, however, it allows you to ask each juror whether there are limits on their belief or attitudes — are there circumstances where they might not believe that driver to be 100% responsible, thus giving you an opportunity to de-select in a more meaningful way.  Do not worry about poisoning a jury panel — instead, look for opportunities to discover your enemies, and to DE-SELECT them.


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