Seminar for Illinois Attorney General’s Office Law of jury selection Seminar for Illinois Attorney General’s Office September 10, 2019 By Ted A. Donner

I. Group Dynamics Selecting Juries Rather Than Jurors

Group Dynamics in Jury Deliberations Leaders Followers Hold Outs Fillers Group Dynamics in Jury Deliberations

Group Dynamics in Jury Deliberations Competitive Cooperative Leaders Followers Hold Outs Fillers Hold Outs Leaders Passive Assertive Fillers Followers Group Dynamics in Jury Deliberations

“Rather than requiring twelve members… the Sixth Amendment mandate[s] a jury only of sufficient size to promote group deliberation…. Recent empirical data suggests that progressively smaller juries are less likely to foster effective group deliberation. At some point, this decline leads to inaccurate fact finding and incorrect application of the common sense of the community to the facts.” - Ballew v. Georgia, 435 U.S. 223 (1978)

Ii. Implicit bias “Setting Aside” Your Reliance on Stereotypes

10:45 So, again, pay attention to the color and not the words….

10:46 So, again, pay attention to the color and not the words….

10:47 So, again, pay attention to the color and not the words….

“If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race both unnecessary and unwise. Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently.” -J.E.B. v. Alabama, 511 U.S. 127 (1994)

III. Stages of voir dire The Difference Between “Deselection” and “Rehabilitation”

The Stages Of Voir Dire SUPPLEMENTAL JUROR QUESTIONNAIRE OPEN-ENDED “DISCOVERY QUESTIONS” “REHABILITATION” OR “DESELECTION” QUESTIONING CHALLENGES FOR CAUSE/ PEREMPTORY CHALLENGES The Stages Of Voir Dire

IV. AREAS OF INQUIRY What is “Relevant” to the Voir Dire of Prospective Jurors

“The trial judge permitted no inquiry designed to elicit the venireperson’s attitudes toward the general nature or specific facts of the case…. [A] trial judge’s desire not to make the voir dire a big deal in a case that’s only going to last a couple of days is clearly subsidiary to his duty to impanel an impartial jury.” -Art Press v. Western Printing, 791 F.2d 616 (7th Cir. 1996)

“Maryland is one of the few states in the country that does not permit voir dire to inform the exercise of peremptory challenges. It has long been the rule in Maryland that voir dire is limited to the detection of bias sufficient to challenge a prospective juror for cause and not to assist in the exercise of peremptory challenges. -State v. Thomas, 369 Md. 202 (2002)

V. LIMITS ON VOIR DIRE The Judge’s Interest in Enforcing Limits on the Process

Privacy Interests Of Prospective Jurors “While the parties have attorneys to champion their rights, the court must protect the Constitutional privacy rights of the prospective juror.” - People v. James, 304 Ill.App.3d 52 (2nd Dist. 1999)

Hardship Of Prospective Jurors

Expense Of Trial By Jury JURY DUTY PAY RATE: $17.50/day ACTUAL COST PER JUROR: $58.00/day NUMBER OF JURORS: 106,403 2017 COST FOR JURORS: $6,171,374.00

VI. CHALLENGES Their Fundamental Importance to Ensuring a Fair Trial

“In evaluating a challenge for cause by the State, the circuit court must determine whether the State has shown that a juror cannot be fair and impartial.” -People v. Buss, 187 Ill. 2d 144 (1999)

“That is the essential qualification for jury service—a juror who pledges to fairly and impartially render a verdict… in accordance with the law and the evidence. If a juror promises to do that, he or she has agreed to do all that the law requires—all that a defendant on trial can ask.” -People v. Sebby, 2017 IL 119445, FN7 (2017) (Karmier, J., Dissent)

“Each side shall be entitled to 5 peremptory challenges “Each side shall be entitled to 5 peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges…. Each side shall be allowed an equal number of peremptory challenges.” -735 ILCS 5/2-1106(a)

Seminar for Illinois Attorney General’s Office Law of jury selection Seminar for Illinois Attorney General’s Office September 10, 2019 By Ted A. Donner