Listen to this article

If you have ever been called into a courtroom as a prospective juror, you have been part of a process known as voir dire.

This is the portion of the trial in which those who have been called in are questioned before being either accepted or excused.

As I always told the citizens who were being questioned, the purpose of what may have felt like interrogation is not to embarrass, annoy or make a stressful situation more uncomfortable. Rather, the court must engage in this procedure to end up with a jury comprised of people who are, as to the parties and their case, impartial.

Experts say we all have certain biases. Recognizing that, the court is not seeking a group of people who are perfect. We would never find them. (If that was the requirement we would not have any judges either.) Rather, we seek people whose knowledge, attitudes and life experiences will not get in the way of deciding the case on the facts and the law.

As the process unfolds, the judge, the litigants and their lawyers learn about those who may be entrusted to decide the case. What they learn may result in excusing a person “for cause.” Ultimately, this is a decision made by the trial judge who has determined that the person cannot be fair and impartial in the case on trial.

In addition, each side has a number of peremptory challenges through which they can excuse a juror for strategic reasons. These challenges are limited in number (the numbers vary based on the type of case and the rules of the court) and cannot be used to exclude persons based on a prohibited criterion such as race. Those not excused will be sworn in as jurors.

So, what are we interested in? I can describe my thinking. The analysis done by the lawyers may be similar but likely includes strategic thinking as well.

I mentioned knowledge earlier. We need to know if the prospective juror knows anything about the case, the parties or the people who may be called to testify. If so, additional questions must be asked to determine if any such knowledge will influence the decision.

Clearly, there is a difference between the following answers: “I think I read something about this a year ago, but I really do not remember any details.” Compare that with “I have been following this since I first heard about it. I have visited the intersection where the accident happened several times. I have a strong opinion as to how it happened and who is at fault.”

The first person is not likely to be excused for cause, while the second probably will. That said, the second person has not been found to be generally unfit for service, just not right for the particular case.

The nature of the case can also be a factor. Our life experience affects our thinking and contributes to the development of our opinions.

Suppose the case is a prosecution for driving under the influence of alcohol. Juror number 183 discloses that a close friend or family member was badly injured in a collision with a vehicle driven by a drunken driver. The judge (and the defense attorney) will be concerned that this life experience may have left the person so embittered that he or she cannot be fair in this case.

Careful follow-up questions will have to be asked. Even if the judge is convinced that the person can separate the prior accident from the current case, the defense attorney will likely use one of the remaining peremptory challenges.

Sniffing out bias is a goal of the process. Bias and prejudice can be positive or negative. To illustrate, we can use a criminal prosecution in which several police officers will be key witnesses. The judge will ask if any prospective juror would give the testimony of a police officer witness greater or lesser weight than that of any other witness.

Some people may respond they would give greater weight because of their faith in and trust of law enforcement officers. This would indicate a positive bias.

Other people may respond that they would give lesser weight due a lack of trust. This reflects a negative bias.

Either way, the ability of the hypothetical jurors to be fair and impartial in the specific case is put in question. More questions would have to be asked before the judge could decide. If these people are excused, it does not mean they are bad people or somehow unfit to serve as jurors. In fact, they may be very well suited to sit in a different case.

Jury selection is a key part of any trial. It can be both tedious and contentious. In my experience, the good people that came in to serve consistently handled it well.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm. His email is askthejudge1@gmail.com.