By Hon. (Ret.) Ken E. Adair
We All Think From Our Own Perspective
Video Transcribed: When I was a young lawyer, I hadn’t been practicing very many years, I went to a seminar about voir dire. One of the things we had at that seminar, was a criminal defense lawyer association in a big city, and one of the panels we had was a panel of judges who were talking about voir dire.
One of the main criminal felony judges in that city, perhaps the major felony judge in that city, made the comment that the only two questions you should ever ask in voir dire are, “Do you believe that you can be fair and impartial?” If a person has a reason why they can’t be fair and impartial, the second greatest question in the world is, “Can you put that aside?”
Even as a young lawyer, I could not believe what I was hearing. We didn’t do this back then, but today I would go … My head exploded. Those are the two dumbest questions you could ever ask in voir dire. “Do you think you can be fair and impartial?”
I raised my hand and he called on me and I said, “Judge, don’t you think that Adolf Hitler and Mahatma Gandhi both would think in their own heart that they could be fair and impartial about anything? Why would that matter asking somebody if they believe they can be fair and impartial if we don’t know what their notions of fairness and impartiality are?”
He made some snide remark and was critical of me. I raised my hand again and he called on me and I said, “When a person puts that stuff aside, can you describe for me what part of the brain they put that aside to where it doesn’t enter into their consideration during the trial or during deliberation?” Again, he didn’t like that question. He made some snide remark to me.
That kind of solidified things for me because I will never ask those questions because I do believe that like a lot of great people and a lot of normal people and a lot of utterly and completely evil people believe in their heart that they’re fair and impartial. That’s what egocentrism is. We’re all egocentric. We all think from our own perspective. We all think with our own minds.
Our minds are the product of a lifetime of experiences. Why wouldn’t we think we can be fair and impartial because we think we’re unfair, we’ll be saying to ourselves, “That’s not fair. Let’s not think that way. Let’s think a different way.” We always think we’re fair and impartial.
If you’re sitting as a juror in a case involving a person accused of felony drunk driving, they’ve had multiple offenses, and your favorite niece was killed seven years ago by a drunk driver and you point that out, and then the judge rehabilitating a juror says, “Can you put that aside and be fair to this defendant under these facts and circumstances?”
When a judge does that, and I never did that, I didn’t do that from the bench, but if the judge does that, you need to ask that juror, “The judge asked you if you could put that aside and you said you could. Can you tell me to the best of your ability what it means to you to put something aside?
Where do you put that when you’re listening to the evidence? Where do you take that memory of your dead little favorite niece who was killed by a horrible, despicable act by a drunk driver who took your favorite niece’s life? Where do you put that during the rest of this trial?”
The jurors will more than likely realize there’s no place to put it. You can’t put it somewhere. You can’t set it aside and you need to at least address it… Don’t attack the juror.
Don’t ever attack the juror ever under any circumstance. When you have a juror that has been primed by the judge who’s tried to rehabilitate a pro-prosecution juror … Now, they’ll rehabilitate other jurors too, but what you’re concerned about as a person that doesn’t belong on this jury being rehabilitated affirmatively by a judge, can you put that aside? That doesn’t rehabilitate anything.
You need to have the courage and guts in a kind and compassionate way to talk to this juror about where this is going to go. “Where are you going to put this memory? Where are you going to put this pain, this anguish?” I ask him, “Does it still bother you? Do you still think about her? Do you still miss her? Do you celebrate her birthday or do you do anything special for her? Have you … Do you have many things that are memorials to your niece, your favorite deceased niece, somewhere in your house?”
You need to ask those questions and find out. Hopefully, that juror will realize there’s really no place to put that kind of stuff. You can’t put it anywhere. That’s a silly thing to ask a juror. “Can you put that aside?” The question is, where do you put it?
That’s something I learned from David Smith. You’ll hear me mention him a lot. He’s taught me everything I know about voir dire with rare exceptions. He hasn’t taught me everything he knows. I think he’s tried, but don’t ever let that slip through. You can’t put it aside. You can’t put it somewhere. Talk to the juror about that and don’t let the judge rehabilitate a juror that doesn’t belong on your jury.
I hope this has been helpful. I’ve enjoyed talking to you about this. I look forward to talking to you again soon. This has been trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.