Dateline: February, 2008, Issue 1

Are jurors with little to say in voir dire unbiased jurors?

When jurors are asked questions in voir dire, silence is generally understood by the court as a negative response. However, jurors remaining silent in group voir dire are not jurors without bias. A substantial number of jurors do not reveal important information in open court.

Seltzer and colleagues (1991) observed the voir dire of 31 criminal trials and interviewed (post-trial) 190 of the seated jurors. More than half of the jurors who had been victims of crimes failed to reveal this information, and only a quarter of those who had ties to law enforcement volunteered this information.

Judge Gregory Mize (1999, 2003), a trial judge on the Superior Court of the District of Columbia from 1990-2002, interviewed all jurors one-by-one in chambers after group voir dire in 30 criminal cases and 88 civil cases. In both criminal and civil cases, 28% of prospective jurors remained silent in group voir dire (i.e., about 17 people out of a 60 person jury pool).

In Judge Mize's research, in the criminal trials, 1 in 5 of the silent jurors offered a highly relevant comment in individual voir dire that was withheld during group voir dire; at least one, and up to four, silent jurors were then struck for cause in 27 of the 30 criminal trials. Silent jurors in criminal trials withheld being the defendant's fiancÚ, being related to the police, being predisposed toward the police, being predisposed against the police, having self or someone close shot with a gun, having lied in group voir dire, and religious convictions conflicting with duties as a juror.

In the civil trials, 1 in 10 of the silent jurors disclosed a highly relevant comment in individual voir dire, which translates into one significant disclosure for every two civil jury trials. Silent jurors in civil trials withheld having been represented by an attorney in the case, being in an auto accident one month before being called in an auto accident case, overhearing others discussing frivolous lawsuits, predispositions against the plaintiff, and predispositions against the defendant.

In both civil and criminal trials, silent jurors withheld medical conditions/hardship, financial hardship, and limited English proficiency.

The most common excuses jurors gave for failing to answer questions in group voir dire were shyness, embarrassment, and a belief that their answers weren't very important.

Judge Mize concluded that individual voir dire is an indispensable means of identifying juror bias.

Despite the court understanding silence in response to voir dire questions as a negative response, jurors with little to say in group voir dire are surprisingly often withholding relevant information.

Source Seltzer, R., Venuti, M. A., & Lopes, G. M. (1991). Juror honesty during the voir dire. Journal of Criminal Justice, 19, pp. 451-462.

Source Mize, G. E. (1999). On better jury selection - spotting UFO jurors before they enter the courtroom. Court Review Magazine, 31, pp. 10-15.

Source Mize, G. E. (2003). Be cautious of the quiet ones. Voir Dire, 10, pp. 1-4.