Members selection

Why do we ask members to promise that they will do the impossible?

This is a question raised in a recent The Jury Expert.

Jurors often promise to try their best to set aside prior experiences, attitudes or beliefs. But the desire to do what jurors believe is expected of them does not create the ability to do it. These factors can be reliably “set aside” only when the juror has no need to do so because the juror doesn’t view them as relevant to the case. If the juror perceives a prior experience, attitude, or belief as relevant, research demonstrates it will have some influence on the juror’s decision making by being part of the schema used to evaluate the evidence. Note that the juror’s perception of relevance is the only test that matters here. While attorneys and judges can help jurors make that assessment by clarifying what is or is not involved in the case, their own definitions of relevance are usually not shared by the jurors.

Decades of social science research debunk the assumptions underlying the “set aside” question.[i] More recent neuroscience research dramatically illustrates how outside stimuli trigger immediate reactions in the brain and offer further proof that a request to “set aside” a relevant experience, attitude or belief is asking jurors to do the impossible.[ii] Jurors simply cannot flip a switch and shut off the influence of their own life experiences or well-established attitudes and beliefs.

A recent Florida Supreme Court decision on this issue, Matarranz v. Florida, No. SC11-1617, __ S.3d ___ (Fla. Sept. 26, 20153), illustrates how we often make it hard for jurors to express any doubts about whether they can do the impossible. Many cause challenges end with a question like this: “You said you would try. What we need to know is whether you are really comfortable with that – are you sure you can set that aside?” The Florida Supreme Court made it clear that getting an affirmative answer to that type of question to protect the record does not protect the rights of the litigants, and ordered a new trial.

And so court thought:

Any lawyer who has spent time in our courtrooms, whether civil or criminal, has experienced the frustration of prospective juror expressing extreme bias against his or her client and then recanting upon expert questioning by the opposition, which generates such embarrassment as to produce a socially and politically correct recantation. When a juror expresses his or her unease and reservations based on actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to “rehabilitate” a juror into rejection of those expressions – as occurred here.

In Matarranz, a juror explained that she could not be fair to the defendant because her family’s home had been burglarized during Christmas when she was eight years old, and because one of her family members had been a victim of fraud. The juror further explained that she believed she could set aside her negative feelings and listen to the evidence, but that she had “an old mind in all things” and would prefer not to be forced to do so. Allowing this juror to remain on the panel was error and the court should have excused her for cause despite her rehabilitation concerning her bias.

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