By John DiMotto
One of the most frustrating aspects of voir dire is dealing with the panel member who clearly does not want to serve. This person puts the court and the attorneys in a very awkward position. No one want a person who really does not want to serve on the jury for fear that the person may subvert the process. However, it is safe to say that many people who come to the courthouse when called are not looking forward to the experience but are willing to do their civic duty. The job of the court is to embrace this second group and make them understand how important they are to the pursuit of justice and a fair outcome of the litigation.
If a judge spends a little time with the panel explaining why we have juries and what a jury accomplishes for the litigants in particular and the community as a whole, the panel members themselves embrace their role with vigor. I say this because at the end of every case when I talk to jurors about their experience, to a person, they relate that they are so glad they had the opportunity to participate although they may have had their doubts when they came to the courthouse for their first day of service.
There are those few panel members who don't want to be there and, of their numbers there are some whose minds cannot be changed. You can tell who they are from their body language as well as their words. The challenge is how to change the minds of those who are willing to listen and how to deal with those whose mind you cannot change and not taint the rest of the panel. My practice is to fully explain why we need them and why they need us. I engage them "one on one" in the open courtroom. In so doing, I reinforce those who want to be there and convince those on the fence to want to be there. As to those whose mind cannot be changed, I try to minimize any damage they might try to cause for the entire panel. However, I try to not "give in" to them right out of the gate though I will not let them taint those who are open to their civic duty. Some of these few "naysayers" can do interesting things.
In the final analysis, it is up to the judge to take control to make sure the voir dire process is fair.