Voir dire is the selection process in which prospective jurors are questioned and challenged in order to weed out jurors who may hear the case with an inordinate amount of prejudice and bias that lurks in the thinking of every Maryland juror. In most jurisdictions the potential jurors are examined by the prosecutor, or the plaintiff’s attorney in a civil case, for both cause and peremptory challenges.
Unfortunately, in Maryland voir dire is limited to questions proposed by counsel to be asked by the judge. There have been studies done in the voir dire context that show questioning from a judge inhibits juror candor. What then do Maryland lawyers rely upon in picking a jury? Gut instincts and stereotyping.
Before every trial I start reading anything I can get my hands on to get a better idea of what I am looking for in potential jurors who will be receptive to my client. One very early morning, around 1:00 a.m., before a very big trial I went to my good friend Google and did a search. I found a law review article from Ohio Northern University (have you ever heard of it?) from 1990 that basically summarized the literature on stereotypes in juror selection.
I disagree with at least a full third of the article, but it is fascinating. Here are some conclusions of the studies/article summarized:
1. One study suggested that plaintiffs should avoid precise or technical types, such as bank tellers or accountants. The same study indicated that farmers are tough and unsympathetic, and that police and nurses should also be avoided because they “are inured to suffering.” (I’m not sure I agree, particularly with respect to nurses who are, I think, actually very tuned in to the suffering of others, but the article cites two studies that support this thesis.)
2. Artists, musicians, actors, laborers, carpenters, mechanics, salespersons, office workers and writers are good jurors to have in a personal injury case.
3. Women are sympathetic jurors.
4. Personal injury attorneys should select male jurors when representing a female injury victim and female jurors when opposing a female plaintiff. If the plaintiff is a child, accident lawyers should select women.
5. Married people are more experienced in life and more forgiving, and thus good for civil plaintiffs and criminal defendants. (This one is from Marvin Belli.)
6. Older persons favor civil plaintiffs since they can identify with the experience of aches and pains, but tend to favor lower awards. Boy, that is a nugget there.
There are a ton more of these broad generalizations in the article. But at the end of the day, I think it is all just pieces to the puzzle of what your gut says to do.
Because, in spite of the advice offered in the first point above, if I am picking a jury for an injured client and can put on my jury a nurse who looks like a nice, fair person, I’m going to grab her.