“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury . . . .”
Sixth Amendment of the United States Constitution
Don’t you just love our federal constitution and how our founding fathers seemingly thought of everything and had such great foresight? Their thoughts and fears of 237 years ago continue to protect us and ensure the liberties we enjoy today. Representative government and the right to trial by jury are the “two great pillars” of the democratic society that was created for our benefit and protection. The right to a jury in criminal cases was a right guaranteed to the person accused of crime in our original constitution and in the constitutions of every state entering the union thereafter.
The right to a jury was extended to anyone accused of crime because for years there was widespread abuse by judges appointed by King George’s henchmen, and the founders sought to make sure that the colonists were safeguarded by the vote of members of their own communities and that their liberties and rights would be in the hands of a jury of their peers personally selected to identify the truth and decide the honest outcome of their case. Thomas Jefferson considered the right to be tried by a jury of the accused’s own choosing as “. . . the only anchor yet imagined by man, by which government can be held to the principles of its constitution.” The trial by jury and the right to vote are cornerstones of our American democracy. Without them, we have no democracy.
In the Seventh Amendment to the Bill of Rights, the first congress adopted the right to a jury for all civil trials to be held in federal courts. In Tennessee, our constitution states that the “right of trial by jury shall be inviolate” and otherwise safe from threat or violation in every type of criminal and almost all civil cases. Unfortunately, our Tennessee Supreme Court has denied the right to a jury determination of civil personal injury damages by approving a limit on the amount that can be awarded in cases of serious or catastrophic injury. In such cases, the jury decision is stricken in favor of an award dictated and predetermined by the legislature.
For years, people have asked about how jurors are summoned to serve and then unselected by lawyers to actually sit on and decide a lawsuit. Federal courts randomly select qualified citizens from the counties within the district using lists of registered voters. Tennessee state courts select jurors to serve randomly from the data base of the Department of Motor Vehicles. It is possible to be excused from a jury for health and hardship reasons.
Every trial lawyer knows the formal and written rules of courtroom practice imposed by our state Supreme Court and the statutes passed by the legislature, but most people do not know about the bundle of unwritten and informal rules some lawyers use to win their cases. Knowledge of these unwritten practices made up of folklore, past experiences, traditions, and junk psychology guide the trial lawyer through the various phases of a jury trial and especially the jury selection process. I have never lost a case where I picked the right jury.
Many people believe that a trial of a lawsuit is a contest to see which side hired the right lawyer, but it is actually a contest to see which lawyer picks the right jury.
After over 50 years of trying all types of jury lawsuits throughout Tennessee and beyond and teaching law students trial advocacy at the University of Tennessee College of Law, I have found that the formal and informal rules that guide lawyers in court are also helpful in our everyday search for clear communication and the exercise of our personal powers of persuasion.
We lawyers like to refer to the jury selection process as voir dire. We call it that because most people do not know what that means and it makes us sound smart. Actually, voir dire is French for “Oh, God, I hope I don’t get picked for this stupid case.” Since the jury panel is brought to the court administratively, they are preselected for the case. The lawyers, technically, are unselecting them to determine who will sit on the case and decide it.
Lawyers are trained to try to accomplish two things when we unselect a jury. First, we try to learn as much as possible about the attitudes and inclinations of each member of the jury by simply asking questions and interpreting the responses. Of course, we kick off jurors who, in our judgment, do not seem to be appropriate for that particular case. Second, we try to teach the jury something about the important points of our cases simply by asking questions crafted to both inform the juror and seek a helpful response. For example, to teach a jury what the case is about and at the same time gain important insight into the jury’s experience, the lawyer might ask a question like, “Have you seen a situation where hospital nurses gave the wrong medication to a patient?” or “Have you ever bought a new car that had a safety defect?” Good questions can both teach and result in learning new and valuable information.
In trying to learn as much as we can about the jury in the shortest amount of time, lawyers like to ask open-ended questions which will cause the juror to talk and divulge important information about themselves. Questions like, “Talk to us about your responsibilities at work,” or “What hobbies and recreations do you enjoy?” are typical questions a lawyer might use to encourage a juror to reveal information about him or herself. Some lawyers might ask more probing questions about the jury’s attitude toward lawsuits and if they have ever criticized a jury for a decision that they read about. People like to talk about their families and particularly their children or grandchildren, and that always makes a good topic to help the lawyer better understand the juror and their values. Simple lesson hard-learned – when trying to get to know someone, it’s best to let them do the talking.
Most good trial lawyers have some understanding of the principles of primacy and recency and try to apply them during the course of the trial. That is, lawyers believe that jurors tend to become more dedicated to their first positive reaction to new information. Everyone knows it is always good to make a positive first impression, and that is because the initial positive assessment tends to influence a person’s later decisions. It is easier to recall our first positive impression stored in our long-term memory bank. The principle of recency simply means that people tend to have best recall of the last few points they learned in a series of facts. For years, I have cautioned law students that they cannot win their case during voir dire, but they certainly can lose it by not making a good first impression and failing to give the jury something positive to guide them through the trial.
The principle of primacy is exemplified by “love at first sight” and by those early impressions you will remember making on your first day on a new job or visiting a new church or meeting new neighbors. An example of the principle of recency might be your best recollection of Richard Nixon standing on the steps of the helicopter giving that overhead wave goodbye to the White House staff gathered to bid him farewell, or your clear recollections of your last visit to one of your favorite restaurants as distinguished from many earlier visits.
Of course, we lawyers commonly make mistakes in the voir dire process. I remember one time trying a rather complex case in front of a Blount County jury and on the first morning of the trial when the jury was empaneled there was a short, heavy lady in the middle of the front row who wore a tee shirt that said, “I’m No FOOL.” Well, since my case would be better served with intelligent jurors, I trusted her tee shirt and kept the lady in the center of the front row. That turned out to be a mistake because, actually, she was a fool.
It has been my experience that when jurors are summoned to the courthouse to serve on jury duty, they come with many biases and prejudices, and each one, of course, has a unique life experience, but they generally do an excellent job of being as fair and open-minded as possible. Jurors take their job very seriously and tend to have excellent recall about the important details of the testimony. However, they understandably have difficulty separating themselves from their life experiences, and jury verdicts do often reflect their experiences and attitudes toward matters such as health, finances, safety, marriage, raising children, and family. A jury is considered the “conscience of the community” when they meet in private and decide on a verdict for the case. It is my belief that their decisions are almost always understandable, reasonable, and in almost every case accurate even though one side is usually unhappy with the outcome. Serving on a jury is a great honor. We should all relish the opportunity to use our experiences in life and our common sense in helping to resolve a conflict to a peaceful and fair conclusion. The right to a trial by jury guarantees for each of us that our disputes will be resolved by the collective judgment of six or twelve people that we have the privilege of selecting from among our own neighbors. Democracy in action.