Jury Contamination – Poisoning the Panel
Lawyers are often concerned about what is known as “Jury Contamination” during the selection of jurors. This refers to a potential juror speaking up in open court and saying something that could infect the entire panel with strongly held viewpoints. This comes in many different forms. A prospective juror could say something about how companies usually offer generous settlements to plaintiffs, which is not allowed to be considered by jurors. I have heard a prospective juror in open court ask about and imply the plaintiff probably had insurance to cover injuries. There are legitimate reasons to be concerned about the potential for any type of prejudicial indoctrination. However, these types of comments are rare. Prospective jurors are typically more linear in their responses and it is by far the exception rather than the norm that a juror offers something that can unduly influence the entire panel. On the contrary, the importance of knowing about a juror’s strongly held viewpoints or opinions by far outweighs the much more remote chances of jury contamination since it is a rare phenomenon. An alert judge and mindful attorneys can shut the discussion down if it appears a wayward juror is spouting views that should not be considered by everyone else.
Another preemptive antidote to poisoning the panel is for the judge to allow for “in camera” voir dire at the bench when a sensitive topic warrants it. It is not unusual for judges to ask jurors in criminal cases, or civil ones that were publicized, whether they have heard or read anything about the case in the press. If a juror responds affirmatively, the judge is not going to say “Tell us all what you read” in front of the rest of the panel. Rather, the juror will come to the sidebar, with the judge and attorneys present, and say what he or she read. Many judges also tell jurors that they are welcome to talk to the judge and attorneys in private if they do not want to say something in front of everyone else.
Years ago I was selecting a jury on behalf of a large corporation. We had a strong defense in place and wanted to seat jurors who would fairly assess the evidence and render a verdict based on what was presented at trial and not on emotion (the plaintiff was significantly injured which would make anyone feel sympathy). As we always do, during voir dire we asked what people felt about large companies. And as usual, we received a wide range of replies. Most responses were middle of the road, where panelists said some variation of companies typically serve the public but are also interested in profits. Some said it depends on the specific corporation since the culture at one company can vastly differ from the culture of another. Fair enough. A few expressed pro and anti-corporate sentiment that was more on the margins. For example, one jury-eligible woman said companies often take shortcuts, while another individual said companies are often a target even though they keep America running. It wasn’t until the discussion of companies was coming to an end when a man in the back slowly raised his hand. He was somewhat tentative but then blurted out he felt that corporations were the root of all evil. Very concise. Very informative. Very struck for cause since he subsequently indicated he would not be able to follow the judge’s instruction to be fair and impartial to both parties. We were relieved he spoke up, but what about the potential for contaminating the views of others with his anti-corporate expression?
When views are expressed that are outside of the mainstream, by a stranger, who may be trying to merely get out of jury duty, why would others embrace such a viewpoint? They typically wouldn’t. When this man said companies are the root of all evil, there were a few chuckles, some groans, and mostly indifference by the remainder of those in the jury pool. This individual did not impress upon anyone as a thoughtful leader with the answers to life’s big questions. He was slouching in his chair, didn’t appear to be respectful of the process, and didn’t exude the type of leadership qualities often seen by articulate confident prospective jurors. Had he seemed like more of a leader, and offered a more thoughtful assessment of companies in an unflattering light, we may have had some concern about his comment affecting the views of others in the panel. But this rarely happens. It is the exception that a fellow prospective juror sitting in the gallery who held a belief in something will all of a sudden abandon their belief in favor of a complete stranger’s worldview. Where else in life does this happen? It rarely does. And if it does happen in court during jury selection, maybe one or two people sitting there may be influenced, but not an entire panel.
If anything, sometimes the opposite happens. I have seen in jury deliberations, someone with an extreme opinion, turn off even like-minded jurors. Take this as an example. If someone favors the plaintiff and wants to award money, they may rethink their fundamental position if someone else in the group wants to favor the plaintiff and award money, and justifies his or her opinion by making extreme statements and/or nonsensical arguments. This can also happen if a “like-minded” juror is rancorous and alienates others with uncouth behavior. The rationale goes, “how could I see things the same way this person does.” Arguments and opinions held by fellow jurors can and do shift others’ attitudes, just not always in the way people assume.