By Dr. Ken Broda-Bahm:
In the ongoing jury selection in the trial of George Zimmerman, the Sanford Florida neighborhood watchman charged in the shooting of Trayvon Martin, one potential juror recently experienced a particularly rough exit from the trial. After reporting in voir dire that he had little knowledge of the case, he was confronted with a Facebook post in which he wrote about the case, "I CAN tell you THIS. 'Justice'...IS Coming." You might recall that at the time the Sanford police made an initial decision not to arrest Zimmerman, the situation ignited a fierce protest across social media, and may not have ever reached the prosecution stage without the petitions and comments that spread across the web. Igniting a debate on race, public safety, and law enforcement, the February 2012 shooting become known to all, or nearly all, creating the very real challenge of seating an unbiased jury.
Especially for a case with notoriety, meeting that challenge means identifying and stopping those potential jurors who might believe that justice "IS coming" via their own participation in the trial. These so called "stealth jurors" want to serve not out of civic duty, but in order to support a specific outcome. The Zimmerman panelist, identified then as E7 but now self-identified as Jerry Counelis, says his name has been dragged through the mud when Zimmerman's defense attorney Mark O'Mara, commented, "A juror like that, what we call a 'stealth juror,' is unbelievably dangerous." Banned from the courthouse after reportedly trying to alert other panelists to what they'll be facing, Counelis now appears to be pursuing a defamation suit. In this case, we may be dealing with an individual who simply forgot about Facebook comments he made over a year ago. But in a broader sense, is all this concern with "stealth jurors" worth it? Yes, but with some caveats, I argue in this post. In addition to fleshing out what we mean by a stealth juror, I also share a bit of what is known about recognizing and challenging them in voir dire.
Let's start with what a "stealth juror" isn't. A "stealth juror" isn't a juror with a potential axe to grind against your client. We tend to just call these "jurors." Watch a few mock trials, or talk to the actual jurors after a verdict, and you'll see that it is the norm for some pretty strong attitudes and experiences to drive the way jurors receive evidence from the get-go. Most jurors -- or at a minimum, most jurors who lead -- are motivated reasoners in the sense that they will look for evidence that confirms the verdict they want to reach. And having a belief, a set of values, or a motive just makes one human, not necessarily stealth.
Just wanting to serve on a jury is not enough to make one "stealth" either. For example, I personally would love to be on a jury (Hear that lawyers? Just Google my entirely unique name and you'll find a wealth of information on what I find persuasive -- I'll be the most known juror you'll ever have!). As unlikely as it is for me personally to serve, though, there are also many other "trial fans" out there who deserve extra attention (e.g., what do they know or think they know about the legal process that they'll bring to their jury duty?) but who aren't necessarily dangerous enough to be disqualified or to earn themselves a strike. Instead, a heightened sense of importance and responsibility may make these folks very good jurors.
Instead of focusing on those with motivation or those who want to serve, the "stealth" moniker is best reserved for those who possess: a) a clear and known bias on the desired result combined with, b) a goal of hiding that bias in order to make it through the jury selection process without being noticed and challenged or struck. So, on to a question I've been asked before: How do you identify and get rid of those potential jurors?
Stalking the Stealth Juror
I don't mean this to be a literature review, but just based on my own research, there isn't much out there. The academic attention thus far hasn't matched the journalistic fixation (hear that academics and graduate students: There's a prime research opportunity here!). But some research knowledge combined with practical experience can support a few guidelines.
1. Be Wary of Relying on Nonverbals
If the challenge lies in identifying jurors who are actively hiding information, it is understandable that attorneys' first question is something like, "Can I look in their eyes somehow and tell they're lying or hiding?" Consultants, depending on their background, will differ in their answer to that question. From my perspective, there is simply no reliable "tell" for dishonesty that consistently works in the context of jury selection where an individual's "normal" patterns aren't generally known before voir dire. While several studies have shown that training can increase one's ability to detect dishonesty (e.g., Matsumoto et al., 2011), there is no simple checklist, and voir dire doesn't often provide the opportunities for close observation of the subtle or "micro" expressions that researchers rely on. Even Paul Ekman, the nonverbal expert who was the basis for Fox's Lie to Me television program notes, "There is no sign of deceit itself - no facial expression, gesture, or muscle twitch that in and of itself means a person is lying" (Ekman, 2009). Nonverbal language isn't really a "language" in the sense of having defined meanings that cut across individuals. While there are somewhat reliable indications of anxiety or nervousness, that only sometimes accompanies dishonesty. In the formal and power-laden atmosphere of a courtroom, it can accompany honesty just as well. And remember, the true stealth juror isn't really playing a role like an actor trying to land a part. Instead, those who know that it's not a matter of being picked but of avoiding a strike won't be playing a role. They'll just be keeping their heads down and trying to escape notice.
2. Look for Patterns
If the stealth juror is someone just trying not to be noticed, then here is one obvious bit of advice: notice everyone. Of course, that isn't a challenge in individual voir dire, like the first phase of the Zimmerman selection, but in the more common setting of group voir dire, don't neglect to talk with those who have avoided speaking up or raising their hands. In either setting, it makes sense to use the old police interrogation standby of looking for inconsistencies. For example, if you've had the opportunity to give jurors a subtantive questionnaire prior to attorney conducted voir dire, then you can look for instances of jurors giving slightly different answers on the stand. You can also rely on the tendency we've written about before for the questionnaire responses, to be somewhat more honest.
3. Don't Spotlight the "Correct" Answer
The true stealth jurors try to give answers that won't get them removed during jury selection. So, they'll avoid responses that would clearly point in that direction. When you offer just one option, and ask whether anyone agrees with it, it can be a little transparent. When a criminal defense attorney, for example, asks, "Who believes that a person being charged with a crime means that person has probably committed that crime?" a stealth pro-prosecution juror will ignore the obvious trap. That is why it is a better practice to provide jurors with a choice of reasonable-sounding options, or to ask them whether they agree or disagree with a more moderate statement made by another juror. The more particular and nuanced the responses you are asking for, the harder it will be for a stealth juror to stick to the playbook.
4. Include a "Reality Check" Question or Two
When the particular case involves the real risk of jurors trying to slip into the jury, it is a good idea to build in some questions that you know the answer to in order to see how far the panelists are willing to go. For example, in the Zimmerman case attorneys asked whether the panelists were concerned about the potential for post-verdict criticism and even riots. The honest answer for anyone who has heard of Casey Anthony or Rodney King is "yes." Of course, a potential juror in such a well-known and racially divisive case would have that concern. So anyone who is sanguine about it, the parties can infer, might be trying too hard to get on the jury.
5. Use the Full Spectrum of Public Information
In the case of Jerry Counelis, the Zimmerman panelist, attorneys knew of the inconsistency because they knew the individual's public Facebook activity. Such information has become much more widely available, and research we've shared indicates that it is often an accurate indication of the individual's actual views. When trying cases that are likely to have been discussed in social media, checking on the public statements panelists choose to share is a critical and obvious step. But it can be important as well in the cases that never see news coverage. Social media comments can tell you much about an individual: what they affiliate with, what kinds of issues and attitudes move them to "share" and to "like," and what characterizes their own style of discussion and argument. It is a good idea to ask about social media participation as a standard questionnaire item, and a good idea to not just Google, but run a more complete social media analysis on your venire names when you have them in advance.
Other Posts on Jury Honesty:
- In Jury Selection, Pay All Kinds of Attention to the Man Behind the Curtain
- Never Rely on Self-Diagnosis of Bias
- Appeal to Your Juror's "Temporary Identity"
Ekman, P. (2009). Telling lies: Clues to deceit in the marketplace, politics, and marriage. WW Norton & Company.
Matsumoto, D., Hwang, H. S., Skinner, L., & Frank, M. G. (2011). Evaluating truthfulness and detecting deception. FBI Law Enforcement Bulletin, June, 1-11.
Photo Credit: Justin Grimes, Flickr Creative Commons