The problem with voir dire
May 14th, 2008 by Gideon | 
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Is that sometimes you end up taking jurors you have no business taking. Like the R. Kelly trial. From media accounts:
Those jurors include an African-American woman whose husband is a Baptist pastor, a black man who identified himself as a Christian and a white executive who said he thinks Kelly is guilty.
What’s that again? A juror who has made up his mind? How can this juror possibly be seated, right? Because the law is full of legal fictions. One of these fictions is that if a juror says something extreme, he can be “rehabilitated”. (Oh, the irony.)
The white juror said he believed Kelly was guilty, but that he could give him a fair trial.
“I have two little kids,” the man said. “Child pornography is about as low as it gets.”
[Judge] Gaughan asked the man to look Kelly in the eye and promise him a fair trial.
Why do we perpetuate this nonsense? Does anyone reading this believe that this juror will “give him a fair trial”? Are we that starved for jurors that we will accept venirepersons who state that they have already decided on the guilt of the accused? Does the right to a fair trial really mean the right to the appearance of a fair trial?
I can understand the defense not pushing this too much - the judge has just created an appellate issue - but the Court should know better. In a high-profile case like this, wouldn’t you want to avoid any potential problems?
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I don’t know, from reading that article you linked, whether that white juror was rehabilitated or not, or why Kelly’s attorney didn’t use a peremptory - do they have those there?
But, to play devil’s advocate here, I can imagine a situation in which I would select someone who admitted believing my celebrity client was guilty (though I don’t have enough info about this particular juror to know if that’s true here). It’s all over the news, and we know that people do assume guilt in our culture. If he was candid enough to recognize that and I believed from his responses that he was able to keep an open mind, apply the law, and base his opinion on the actual evidence, I might be happy to have him. I would imagine it’s going to be hard to find jurors who don’t know who R.Kelly is and who don’t already think he had some kind of sexual contact with an underage girl. We know as lawyers that he’s presumed innocent and that these are mere allegations, but that’s not how jurors think. ( I mean how many R.Kelly jokes have you heard since this story broke??) I might prefer someone who recognizes that from the media stories alone, he assumed guilt, but understands that he can’t do that in a court of law and that the things he heard might have been wrong. I’d be more wary of the person who said he/she heard the story and didn’t develop any opinion of Kelly or his guilt based on it. That person is either lying or totally oblivious and unaware of his/her own prejudices, which is no good, IMHO. (It’s also possible the person feels that way because he/she has intimate or personal experience with the criminal justice system, in which case he/she will not be selected anyway).
What might trouble me more about the white juror is his concern about his career and work if he has to serve on the jury.
I think your a little overdoing it here, Gid. What you really care about is whether someone is going to hold the state to its burden. It certainly is possible to believe someone is guilty in the sense of “they did it” but also committed to holding the state to its burden.
Again, I think that’s the legal system with blinders on. I find it difficult to believe that someone can “put the State to its burden” and yet state that “the defendant is guilty”.
“Rehabilitated” jurors are a fiction; people who believe someone is guilty but “holds the state to its burden” are also fictional. I talked to pretty much every juror who would talk to me after a trial my first several years. They never change their minds. They can point to anything to justify their original mindset.
See, that seems to make more sense. The problem with questions like “But can you follow the law as the judge explains it to you?” and “Will you be able to put aside any preconceived notions and apply the law to the evidence introduced at trial” is that they suggest the answers to the venireperson. The venire person, not wanting to look obtuse in court, follows along and gives everyone what they want to hear.
And you guys have the opportunity to observe his demeanor. I would bet that in this case, which is pretty slam dunk, the probklem of a “he did it” juror is attenuated, and you’d rather have a person who will be officious–kind of like the juror in Uttecht v. Brown.