More jury analysis

Back in August I posted this article evaluating the attitudes of a jury pool in a case regarding the alleged violation of a municipal ordinance. I said the scaled questions we used were meant to determine where the jurors fell on the continuum between egalitarianism and totalitarianism. After thinking about it for a while, I don't think that's the right matrix for this analysis. I think the correct way to look at these results are on a continuum between defense-oriented and state-oriented.

This past Monday we finished trying a case that had been continued for almost three weeks because witnesses had not complied with subpoenas requesting documents related to the case.

During voir dire I asked the following five scaled questions in order to determine whether a juror was more defense-oriented or state-oriented:

1. How would you rate your feelings about whether the defendant, as he sits up here today, is guilty?

2. How would you rate the weight you'd give the testimony of a person wearing a badge, without regard to training, but solely out of respect for the badge?

3. This Court will instruct you that the State has the entire burden of proof in this case. How would you feel in the defendant didn't testify?

4. Do you agree that it is better that ten guilty men go free than that one innocent man suffer?

5. Do you agree that in the long run, order is more important that liberty?

As an aside, I never used the term "defendant" at trial. I always referred to my client by his given name.

Each of these questions were to be answered on a scale of 0-10, with 0 being very defense-oriented and 10 being very state-oriented.

As a whole, the panel averaged a 1.6 on Question No. 1; a 1.9 on Question No. 2; a 2.9 on Question No. 3; a 4.8 on Question No. 4 and a 5.5 on Question No. 5. The overall average was 3.3.

The prosecutor struck four jurors for cause. Those jurors averaged a 5 on Question No. 1; a 1.5 on Question No. 2; a 4.8 on Question No. 3; a 5 on Question No. 4 and a 6.3 on Question No. 5. The overall average was 4.5.

The prosecutor used two peremptory strikes. Those jurors averaged a 0 on Question No. 1; a 1.5 on Question No. 2; a 2 on Question No. 3; and 6.5 on Question No. 4 and a 3 on Question No. 5. The overall average was 2.6.

We struck nine jurors for cause. Those jurors averaged a 1.7 on Question No. 1; a 3.1 on Question No. 2; a 3.9 on Question No. 3; a 5.2 on Question No. 4 and a 6 on Question No. 5. Most of the jurors we struck were struck because of their answers to Question Nos. 1 and 2. The overall average was 3.9.

We used three peremptory strikes. Those jurors averaged a 0 on Question No. 1; a .3 on Question No. 2; a .3 on Question No. 3; a 5 on Question No. 4 and a 7.7 on Question No. 5. The overall average 2 was 2.7.

The six jurors remaining averaged a .7 on Question No. 1; a 1.2 on Question No. 2; a 1.8 on Question No. 3; a 3.3 on Question No. 4 and a 4.2 on Question No. 5. The overall average for the panel was 2.2.

The panel was made up of three white males, one black male, one black female and one Hispanic female.

Although we had what appeared to be a very defense-oriented panel, we did not receive a favorable verdict. Whether we were hurt by a faulty methodology, bad analysis, the facts of the case or the nearly three weeks off during the middle of the trial, I don't know.

I do know that our use of the scaled questions allowed us to strike nine jurors for cause and gave us a tool to use when trying to decide on whom to use our peremptories. This method also gives us the opportunity to get feedback from the entire panel so that we aren't stuck with someone who kept their mouth shut during voir dire.