C. GROUP CHEMISTRY JURORS AND JURIES
From MN Bench Book - Trial Procedures & Practices for Judges
Jury selection is a "weak art" and not a science.
Two significant limitations keep jury selection from being a science.
1. Attorneys cannot choose the members of the panel they want on the jury, and
2. The people who remain on the jury after cause and peremptory challenges form a group, whose dynamics are not predictable.
It is important to recognize that attorneys do not pick a jury. They do not get to choose who goes on the jury. Attorneys, by exercising cause challenges and peremptory challenges, remove the panels members they do not want on the jury. Attorneys believe that the people remaining on the panel will be favorable jurors. However, Because peremptory challenges are limited in number attorneys remove the most objectionable members of the panel. Attorneys are often, if not always, left with individuals on the jury that they ideally would like to remove but cannot because of the limited number of peremptory challenges.
Jury selection is a weak art because the lawyer cannot, in the selection format and with the restrictions imposed by law, ever discover all the ingredients that will provide a solid basis upon which to draw conclusions about how a particular juror is likely to decide the case. Even trained psychologists, after conducting tests and expert interviews, cannot accurately predict behavior.
But let's assume that if we ask enough of the right questions of a prospective juror we will get a good feel for that juror's predilections. We might conclude after a searching and open voir dire that this juror is methodical and is a "show me" kind of person and that she is fiscally quite conservative. She won't buy limp proof and won't award big damages. And then the jury returns a multi million dollar verdict.
Note that the emphasis has shifted from juror to jury. The verdict is a product of the group. The group often seems to be larger than its individual members. The mix of individuals in the context of an instruction by the judge that the individuals are to try to become, a unanimous jury creates a group chemistry. The group chemistry is unknowable until the jury begins deliberating. Numerous instances are reported by attorneys and judges where a jury verdict is swayed by a member of the jury who has an undetected perspective that only comes out during deliberation.
It is fine to work hard to select the right individuals, but you cannot ever be sure that you have the right group. Since it is the group, and the dynamics of the group that result in the verdict, voir dire a weak art.