Juror Bias and Selection

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.

 

 

 

FOOTNOTES

Thomas W. Malone, “Voir Dire and Jury Selection,” The Practical Litigator, *13 (July 2005). 2 For linguistic nerds, voir dire is not translated, as is all too commonly repeated, as “to speak the truth.” Voir is a modern French term, as opposed to the more venerable voire, derived from the Latin verum. So, as is, voir dire means “to see to say.” But that isn’t nearly as good as “to speak the truth,” though, so I say go with that. 3 Ga. Const. Art. I, § I, ¶ XI4 O.C.G.A. § 15-12-123(a); Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 479 n.20 (collecting cases; stressing that “an impartial jury is the corner-stone of the fairness of trial by jury”).5 Cambron v. State, 164 Ga. 111, 114 (1927) (emphasis added); Kim v. Walls, 275 Ga. 177, 178 (2002) (“[T]he potential impact of juror bias must not be underesti-mated. Running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial.”). 6 178 Ga. App. 857, 858 (1986). Parisie hardly stands alone, and “freedom of suspicion” language is repeated in over a dozen Georgia opinions. Notably, this line of cases also counters the oft-cited (and incorrect) proposition that to justify a strike for cause, a juror must have a “fixed and definite opinion” on a material fact, as to the parties, or other key issues likely to play out at trial. See, e.g., Meintzer v. Weinberg, 212 Ga. App. 307 (1994) (“Jurors should come to the consideration of a case free from even a suspicion of prejudgment or fixed opinion upon any material fact in the issue to be tried — as to the parties, the subject-matter, or the credibility of the witnesses.”) (emphasis added; internal punctuation omitted). 7 Mobley v. Wright, 253 Ga. App. 335, 337 (2002). 8 See, e.g., Scarpaci v. Kaufman, 328 Ga. App. 446, 452 (2014) (physical precedent only) (juror conceded leaning, initial bias, and that the parties were not starting off equally); Walls v. Kim, 250 Ga. App. 259 (2001), aff’d in relevant part, 275 Ga. 177 (2002) (abuse of discretion to deny motion to strike; where potential juror has exiting relationship with party, or other bias, and admitted that the parties “did not start the case on equal footing”); see also Daniel v. Bi-Lo, 178 Ga. App. 849, 851 (1986) (“The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination.”). 9 Georgia “appellate courts have routinely affirmed the decisions of trial courts to excuse jurors for cause when—as here—there was a relationship between a juror and a lawyer, party, or witness that led the juror to express some doubt about his impartiality, even if the expression of doubt was equivocal.” Trim v. Shepard, 300 Ga. 176, 179 2016 10 One case well worth citing on this and other voir dire fronts is Jones v. Cloud, 119 Ga. App. 697 (1969). This colorful decision was essentially the Kim v. Walls of its generation, including a near-exhaustive chronology of the important Georgia decisions establishing and reiterating the need for a bias-free jury. E.g., id. at 707 (“In the interest of fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors, rather than in a too-technical observance of the letter of cases previously adjudicated and an attempt to bring the facts of other cases within some particular ruling.”).11 Cohen v. Baxter, 267 Ga. 422, 424 (1997). 12 A trial judge’s discretion on juror bias issues is considerable precisely because a jurist “is uniquely positioned to evaluate whether a potential juror can render an impartial verdict, considering that the trial judge can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks.” Trim, 300 Ga. at 178. A savvy practitioner, then, will incorporate nonverbal cues or tells into an argument as to why a juror should be struck or retained. A juror scowling with arms crossed will appear in a transcript exactly like a placid, neutral counterpart unless counsel notes any relevant factors on the record. 13Kim, 275 Ga. at 178. 14 Foster v. State, 258 Ga. App. 601, 608 (2002). 15 Daniel, 178 Ga. App. at 850. 16 O.C.G.A. § 15-12-122(b) (each party has the right to “demand a full panel of 24 competent and impartial jurors from which to select a jury”); see Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 479 (2011). That a party does not exhaust her peremptory strikes does not impact that analysis. “[L]itigants—criminal and civil—are entitled to the removal of unqualified jurors before they begin exercising their peremptory strikes.” Stolte v. Fagan, 291 Ga. 477, 478-479 (2012). Here the Jones opinion also has useful language. “Parties should not be required to use their strikes in an effort to remove disqualified jurors. Let there be no thumb on the scale when the jury weighs the evidence!” 119 Ga. App. at 708. The Court’s resort to an exclamation point perhaps demonstrates the importance of the issue in Georgia law. 17 Guoth v. Hamilton, 273 Ga. App. 435, 436-437 (2005). 18 Remillard v. Longstreet Clinic, P.C., 267 Ga. App. 230, 231 (2004) (rejecting use of “multiple, leading questions” to elicit affirmation of impartiality); see Guoth, 273 Ga. App. at 438 (quoting Remillard).19 Elliott v. Home Depot U.S.A., Inc., 275 Ga. App. 865, 867 (2005); see Foster, 258 Ga. App. at 608-09 (rejecting multiple attempts at posing “loaded question” to juror, in an attempt to have her “relent[] with a different answer”).20 A juror’s assurance of his or her impartiality cannot be the sole basis for a court’s decision to reject a for-cause challenge, if the record otherwise shows a compelling bias or interest in the outcome of the case. McClain v. State, 267 Ga. 378, 380-81 (1996). 21 Elliott, 275 Ga. App. at 867. 22 Remillard v. Longstreet Clinic, 267 Ga. App. 230, 234 (2004) (rehabilitation inquiry must be “into the juror’s thoughts and beliefs,” which “necessarily involves questioning regarding the nature and extent of the potential bias”); Harper, 313 Ga. App. at 478 (reversing; “the most that can be said of any generalized inquiry by [ ] counsel is that it consisted solely of the very ‘talismanic’ questions this Court has previously cautioned against.”).23 Harper, 313 Ga. App. at 477-478 (internal citations and punctuation omitted; emphasis added); Brown v. Doctors Hosp., Inc., 277 Ga. App. 891, 894 (2006) (reversing, as inquiry into juror’s bias must be of “sufficient scope and depth to ascertain any partiality” and follow-up questioning only reached some of the reasons potential juror cited as to bias). 24 Clark v. State, 265 Ga. App. 112, 115-16 (2003); Ivey v. State, 258 Ga. App. 587, 592 (2002) (same); Foster, 258 Ga. App. at 608 (same). 25 Doss v. State, 264 Ga. App. 205, 210 (2003) (“When some hint of juror bias or partiality appears, it is an abuse of discretion to cut off inquiry and rely on an affirmative answer to a rehabilitative question from the bench as a talisman to show that the juror has magically, suddenly become unbiased and impartial.”); Foster, 258 Ga. App. at 609 (“[A] trial court may not rely solely on a prospective juror’s isolated and extracted statement of impartiality” when entirety of voir dire reveals a different context). 26 Guoth, 273 Ga. App. at 440; accord, 275 Ga. at 179 (once bias established, inquiry must be of “sufficient scope and depth to ascertain any partiality.”).

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. Talismanic questions are, in essence, generic attempts to address a context-specific problem, and that constitutes the root of problem.

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