By Hon. (Ret.) Ken E. Adair 
Frame the Question the Right Way
Video Transcribed: Years ago, I had the occasion to watch a jury trial and watch a friend of mine tr a case. And toward the end of voir dire, it was a criminal case and he asks the jurors, he said, “How many of you want to be on this jury?” And some of the jurors raised their hand and he asked them one by one. He said, “Why do you want to be on the jury?”
And they said some of them said, “Well, I think it would be interesting. I think it would be exciting. I want to do my civic duty.” Those sort of things. And when we got done and we took a break and I asked him, I said, “Why didn’t you ask that question?” He said, “I don’t want the morbidly curious people on this jury in a criminal trial.”
Nobody in their right mind with a good heart wants to sit on a criminal jury and pass judgment on another human being and on their conduct to the point where they might have to put somebody in prison. No decent person would want to do that.
Decent people will do it when called upon by their country or by their government or by the judiciary or by the constitution. It is a constitutional right. They’ll do it if called upon to do it as a civic duty, but nobody desires to sit on a criminal jury and pass judgment and send somebody to prison.
So that brings up the concept of the morbidly curious juror and why you want to avoid that morbidly curious juror. I would state that maybe that question should be asked in every criminal trial. “Who among you wants to be on this jury panel?” Maybe it’s because they’ve invested a lot of time but you’ve got to explore those people.
You might have more people raise their hand than you have peremptory challenges and I don’t know, I don’t know that you can’t, but I don’t know that you can, get them stricken for cause because they’re eager to do their civic duty.
But as a practical matter, if you phrase the question the right way, you frame the question the right way, “How many of you want to be on this jury? How many of you really want to be on this jury?” It’s just really important because if you think about it, no really decent person is going to want to be on that jury. They’re willing to.
They’re willing to serve but to desire or crave the opportunity with some bizarre or morbid curiosity to sit in judgment of your client and possibly put your client in prison, that is way too far across the line into what would be called latent bias, which is grounds for a peremptory strike.
So be sure and include that in your voir dire and be sure and ask that question. I hope this has been helpful. I look forward to talking to you again soon and thank you for listening. This has been trial attorney Ken Adair. If you are looking for co-counsel services or an experienced jury consultant, visit trial.win.
