Anne Reed at Deliberations brings us Voir Dire Questions That Could Have Been Better, about a friendly trial judge who asks the jury two questions, but tells them NOT to raise their hand until both questions have been asked. 

Question 1:  Now, here is the first question. And, again, you don’t need to raise your hand. Listen carefully. This is a question about you personally, you personally as well as any close family member or close personal friend. Is there anyone in that group, either you personally, close family member or close personal friend, who is either presently or previously employed by any law enforcement agency?

Question 2:  Now, if the answer to that is yes, listen very carefully to this question. As a result of that experience that either you had personally or are having right now as an employee, as a result of that experience or as a result of the experience of a close family member or a close friend, . . . do you believe that you, that you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?

Thankfully, the DC Circuit held that the “defect in that question is obvious,” U.S. v. Littlejohn.  For the handful of criminal defense lawyers who actually try cases, consider the implication of finding out after the verdict is rendered that, unbeknownst to you, you had a few agents sitting on the jury who never raised their hands since, either in their own minds decided they could be fair (“I would never convict the defendant until after he had a fair trial”).  Worse yet, what are the chances that they just decide not to raise their hands, and hence nobody has a clue that they’re having a good ol’ time sitting on that jury, getting paid, and just biding their time until they do a little justice by putting the defendant away.

There is no substitute for knowing who you’re potential jurors are, and their inherent bias is subject to scrutiny.  Most people will state with absolute conviction (pun intended) that they can be fair and impartial, even when they’re either in, or connected to, law enforcement.  Clearly, that self-assessment is utterly useless, even if sincere.  The point is to be able to probe, and assess, bias, not to let the juror tell you how pristine and honest he or she is.

In a recent trial, I ended up with two fellows on my panel who were worth a second look.  One was a well known criminal defense lawyer and the other was an FBI Special Agent.  We all knew the lawyer, and it didn’t help that he sat in the front row and was giving us the “hi sign” from the Little Rascals the whole time.

The agent, on the other hand, was unknown to any of us.  He looked like anyone else.  No sign on his forehead.  No telltale bulge in his waistband.  He could have been anyone.

The judge called us to the bench and asked if it was necessary to make this criminal defense lawyer waste his morning, since he obviously could not serve as a witness.  “Obvious?” I inquired.  Why couldn’t a criminal defense lawyer be fair and impartial?  Just because we defend the accused doesn’t mean that we favor crimes.  Hey, we’re law-abiding people who understand duty and obligation as well as the next guy.  Maybe even better.

Nope, the judge responded.  He’s out of here.  The prosecutor, naturally, chimed in with, “Oh, of course, Your Honor is absolutely right.”  What a suck up.  Over my strenuous objections, the defense lawyer was cut loose and sent packing.

But when the agent was put in the box, the world changed.  Of course he could be fair and impartial.  When I challenged for cause, the judge raising an eyebrow at the very suggestion, I was subject to a massive effort at proving how this FBI agent would never consider being anything less the absolutely fair.  He would never be inclined to believe a law enforcement officer over a defendant.  He would never consider a cop to be more trustworthy and honest than anyone else. 

Despite my arguments, the judge concluded that there was absolutely no basis for a cause challenge, forcing me to use a peremptory challenge to throw him off the jury.  And so it goes.

The point of voir dire is to get at the truth. But the truth is a relative thing when its comes to selecting a jury, and the final step of the process, the question that the judge in Littlejohn had yet to ask, is how a person whose career is dedicated to putting the bad guy away, to protecting his brother agent, to overlooking those little details that get fudged at trial with a wink so that “justice is done,” at least in their eyes, can be fair and impartial.  In the good old days when both cops and lawyers were out of the jury pool, these stupid problems didn’t exist. 

Today, they are very real, and we have two problems to deal with.  First, we have to unearth the people with inherent bias.  Second, we have to get the court to go along with the idea that those jurors with pro-police bias should be taken off the jury just like the ones who are anti-police.  The second will prove as much of a struggle, if not more, than the first.