A Key Issue at Trial
BY DARREN SUMMERVILLE
Picking a jury should be on any litigator’s short list of the most important phases of trial, as “[a]ny case worth trying is worth the effort of well-prepared voir dire.”1 Part and parcel of any such preparedness is a deep understanding of the statutory and precedential framework regarding the conduct of voir dire, and, likely more importantly, challenges for cause. This article attempts to briefly outline the governing law and concepts involved in winnowing a venire to strike a fair and impartial twelve. By statute, voir dire in civil cases can and should touch upon any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror. O.C.G.A. § 51-12-133. The breadth of allowed questioning should be obvious –read fairly, there is quite little that would not be allowed in a given voir dire. That seems correct, given Georgia’s Constitutional guarantee of a jury trial,3 and concomitant statutory requirement of a “competent and impartial jurors from which to select a jury.”
Any good voir dire has multiple aims, including identification of good and bad jurors, education of the venire and ultimate jurors as to the background of the case, and building credibility as to party and counsel. Eliciting testimony to establish a basis for a causal strike is probably the most common scenario discussed in the case law.
The ground rules as to juror bias are clear, at least in a vacuum: courts should not accept “leaning,” or suspicion of any such partiality. At base, the panel must be “omni exceptione majores [above all challenge],” and this “extends to debar jurors when there is a suspicion or ground for suspicion.”5 Perhaps the strongest language as to the standard for juror neutrality is exemplified in Parisie v. State, which admonishes that “[j]urors should come to a case free from even a suspicion of prejudgment of the issues to be tried – as to the parties, the subject matter, or the credibility of witnesses.”6
If a potential juror expresses a predisposition as to an issue or party, or otherwise demonstrates a lack of impartiality, a motion to strike for cause is in order.7 Although it is impossible to catalogue the types of voir dire testimony or responses that might justify (or require) a causal challenge, generally a juror who proclaims one party to be starting off behind, or begins the trial “leaning” on a key issue such as non-economic damages, likely needs to be the subject of a cause motion.8 Along those lines, bias is often inferred (or elicited) when a prospective juror has a relationship with a party or lawyer in the case that tilts the partiality scale at the outset.9
It is also important to lay the groundwork for how strongly held a particular bias might be – questions regarding the historical nature of their belief, the origin of their inclination in a particularly important or troubling event, the deep-seated nature of their predisposition, and the like.10
All of that is true because under Georgia law, jurors are presumed to be impartial, and the burden of proving bias or inclination sufficient to support removal for cause rests with the party wishing to strike a particular juror.11
The trial court, then, has the ultimate duty (and discretion) in determining if a prospective juror should be excused for cause.12 Clouding the issue, “[t]here is no specific test for the disqualification for favor in a civil context.”13 But given the weighty constitutional issues involved, and the time-honored paeans to fair juries that run throughout Georgia’s statutory and common law, the judge “should err on the side of caution by dismissing…biased jurors because, in reality, the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury.”14
The analytical lens is well-known, if not well defined – the bias of a potential juror should be viewed using the “ordinary general rules of human experience,” including the straightforward assumption that those with some sort of preexisting interest will not artificially set any set of beliefs aside, merely because they are told to do so.15 The stakes are high; if a trial judge improperly denies a motion to strike for cause, it is reversible error that will require a retrial. 16
That is hardly the end of it. Lawyers want biased jurors, despite any protestations to the contrary. Opposing counsel will likely fight to retain a “favorable” juror by resorting to so-called “rehabilitation” questions, hoping to establish, or re-establish, a juror’s capacity to be fair and impartial. The Georgia appellate courts have no shortage of cases addressing the propriety of so-called “talismanic” attempts at rehabilitation, and an equal number condemning the practice:
In too many cases, trial courts confronted with clearly biased and partial jurors use their significant discretion to “rehabilitate”these jurors by asking a version of this loaded question: After you hear the evidence and my charge on the law, and considering the oath you take as jurors, can you set aside your preconceptions and decide this case solely on the evidence and the law? Not so remarkably, jurors confronted with this question from the bench almost inevitably say, “yes.”17 Talismanic questions are, in essence, generic attempts to address a context-specific problem, and that constitutes the root of problem.
Those sorts of questions, amounting to interrogation in hopes of flipping a juror’s response, are simply inappropriate. Of particular concern are rehabilitation conducted through leading questions (“Well, if instructed by the Judge as to what the proper measure of damages is, you could overcome those feelings about pain and suffering damages, can’t you? You’d try to be fair on that issue, wouldn’t you?”).18 Equally problematic is an attempt to merely badger the prospective juror into a different answer; neither court nor lawyer may “browbeat the juror into affirmative answers to rehabilitative questions by using multiple, leading questions.”
Neither of those approaches really ferrets out the nature and extent of a juror’s bias, or potential for impartiality.20 To the contrary, that well-worn path to error is better characterized as an attempt to reveal that the “juror has magically, suddenly become unbiased and impartial.”21 Since that fiction does nothing to actually determine if a juror could indeed set aside preconceived notions and hear the evidence fairly, Georgia courts routinely condemn it.22
Instead, once a juror expresses bias, it is the trial court’s duty to “conduct an inquiry, either through its own questioning or allowance of questions by counsel, sufficient to evaluate the potential juror’s fairness and impartiality,” but that effort must “consist of more than attempted rehabilitation of the jurors through talismanic questions, such as whether the juror can set aside his personal feelings and decide the case based solely on the evidence and the law.”23
Succinctly put another way, “[n]either the court nor the parties should incessantly interrogate the juror in a manner calculated only to elicit a response contrary to the one originally given. Interrogation for that purpose is nothing more than an effort to justify finding a biased juror qualified.”24
And at the risk of being obvious, a trial court risks error in cutting off such inquiry as to any pronounced bias, or in relying on a painfully-extracted affirmation of impartiality in the face of other, more specific explanations of bias.25 Rehabilitation is simply insuf-ficient if “[t]he tone, direction, and repetitive nature of the questions from the court and counsel” signal that a juror can “acquiesce and lay claim to an ability to be impartial despite her strongly-held feelings and knowledge.”26
So, given that no single article can comprehensively canvas the Georgia precedent as to voir dire and causal challenges, summing up a bit seems appropriate and apparently de rigueur. That said: juror bias and selection is either the key issue at trial, or awfully close to it. Accordingly, know the framework, know the cases, and make a good record. The Constitutional weightiness of the issue should command as much, to say nothing of the potential case-dispositive issues in play.
ABOUT THE AUTHOR:
Darren Summerville is the founder and principal of The Summerville Firm, LLC, a litigation and appellate boutique in Atlanta. His firm’s primary niche is as “embedded counsel,” providing advice and guidance on particularly complex legal issues at the trial level, with an eye towards retaining victories on appeal. A longtime GTLA Champion and member of the Amicus Committee, Summerville’s firm has been counsel in some of the most important Georgia civil justice cases in the past decade.