Cause challenges play an important role in jury selection. When a potential juror has an acknowledged barrier to basing their decision on a neutral understanding of the evidence and the law, they should not serve. However, when lawyers are exploring potential cause issues, I often see them taking an approach that reduces the likelihood of success. The principal mistake is to go to the qualification question too soon, asking, “can you be fair?” or some variant of that question right out of the gate, as soon as the potential juror has revealed an experience or an attitude that could serve as a foundation for cause challenge. That question will at some point need to be posed to the potential juror in order to satisfy your judge that the cause challenge has merit, of course, but using the qualification question as a starting point can too often push jurors to agree that they can be fair, because being fair is the “socially desirable” response. When pressed on that question too soon, jurors will generally say they can follow instructions because that is perceived as the “right” answer in that situation.
An advocate might say to themselves, “if they say they can be fair, then I don’t need a cause challenge,” but this is wishful thinking. The social science indicates that a promise to be fair, in practice, is shallow, and rehabilitation itself has not been shown to eliminate or even reduce bias (Salerno et al, 2020). As an advocate during voir dire, you should only rush to the “can you be fair?” question when your goal is to reach a surface rehabilitation (to deprive the other side of a cause challenge and force them to use a strike). When your goal is to actually learn more about the individual, or to steer the potential juror toward a cause challenge, you should ask other questions first. Jurors need to be eased into and pre-committed to a position before they are challenged. Based on observations in many courtrooms, I believe there is a definite structure to an effective cause challenge.
I recommend moving each conversation with a potential juror through five phases with distinct goals at each step.
1. Identify. Start by identifying an attitude or experience that can be the basis for a cause challenge. This will be an issue that bears on the case and that would potentially set the juror apart from others in the pool. This can be anything that comes up as an answer to a well-designed juror questionnaire or emerges during questioning by counsel or the court. Importantly, don’t signal to the potential juror that the response is wrong in any way. Instead, you are simply interested in learning about their attitude or experience.
2. Perform. Before connecting the issue to their qualification and fitness to serve, encourage the juror to perform or to wear that attitude or experience a bit in order to remind the juror of their views/experiences, and to learn more about the nature of the issue. Ask questions like the following:
- Why do you feel that way?
- Can you tell me more about that?
- Why do you feel that could be relevant to our case?
3. Amplify. Set the stage for jurors to add strength to the experience or the opinion, on order to move it in the direction of being significant, important, powerful, and hard to set aside. Clearly, if the potential juror does not go along with you in moving in this direction, or if they minimize or take back the attitude, then they may not be a good cause candidate (though, importantly, that self-rehabilitation is not a reliable ‘cure’ for any bias that they’ve expressed, so they may still be a good target for a peremptory challenge). To amplify, ask questions about the strength of their perspective:
- Have you held that view for some time?
- Is that something you found yourself thinking about as you heard what this case is about?
- Would you say that your feelings about that are pretty firm?
4. Set. Move to get the juror to commit to the cause target using the qualification question (e.g., “can you be fair?”). While you want to employ whatever “magic words” the judge is expecting to hear, you should still try to phrase the question in a way that makes it easier to admit to bias than to deny it. Avoid the term “bias” itself, because most people see that as something negative that they would not want to apply to themselves. Instead emphasize the challenges they would have in being truly neutral:
- So am I safe in believing that you wouldn’t be truly neutral on this?
- It would be difficult for you to treat the two sides equally, wouldn’t it?
- You would face a challenge in trying to fully set that aside, correct?
5. Protect.
Knowing that your questions are unlikely to be the final word, anticipate that the judge or the other side will attempt to rehabilitate the juror away from that expressed bias. Build in some resistance to that rehabilitation by attempting to seal-off the position from any attempt to get them to soften their view.
- That isn’t an opinion that is likely to change today, is it?
- Knowing that you would do your best to follow the rules, it sounds like completely setting this experience aside isn’t fully in your control. Is that correct?
- Can we expect you to stick with that view, even if the judge or the other side asks you this same question?
If they initially say they could set it aside, ask them how they would accomplish this, with the message being this compartmentalization may be easy to say, but harder to do. The main implication is this: take your time to acclimate the potential juror to the cause challenge. Instead of rushing to ask the ultimate question of whether they can be fair, take some time to let the individual expand on and to “own” the reasons why they may not be.
You might also consider bundling several potential cause concerns for a single juror by moving through steps one through three for a number of different issues before addressing steps four and five based on their full set of answers. It is our observation that cause challenges are most effective when you can pull together a cluster of attitudes and experiences as the rationale for the challenge.
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