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“Do each of you solemnly swear…that you will render a verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God?”
-sample juror oath
“You must accept and apply the law as I explain it to you, whether you agree with it or not.”
-sample jury instruction
I typed “defy court order” into a search engine. I got over 2 million hits. Will these news stories filter down into the jury room? Will the jurors follow the law as the judge gives it? Years ago a similar concern was raised about the “CSI Effect” on jury pools hearing criminal cases.
So few civil cases ever reach a jury. It takes a lot of time and resources. How can we be sure the jury will follow the law given this steady diet of daily new stories? Will we see an increase in hung juries, jurors discharged for failing to follow instructions and, ultimately, verdicts that are clearly the result of jury nullification?
Add on top of these stories the increased political polarization in this country. These questions led me to an article written by Professor Richard Jolly. Two sentences from his article jumped out at me: “Americans loathe each other and rationally believe that Red and Blue Juries are unfairly relying on their partisan ideologies in resolving disputes. Put simply: Americans don’t like each other anymore.” I called Professor Jolly and, after talking with him, here are my suggestions for addressing these concerns.
Do Your Research
An ounce of prevention is truly worth a pound of cure. It is ethical to see what potential jurors have posted on the internet. Find out from the court when you can get the names of the jurors. In some courts names are only revealed the day of trial. Nevertheless, it is worth your time to have someone put the names into a search engine to see what is posted. You may get clues as to whether that potential juror will follow the rules.
This is a process that should be done before, during and after trial, the latter being important in cases that you lost. At the beginning of the case you may find information that will guide your preemptory or cause challenges. Were Professor Wigmore alive today I believe he would substitute “social media” for “cross-examination” as the “greatest legal engine ever invented for the discovery of truth." I have seen so many cases fall apart or settle based upon social media posts.
Some people just have a constitutional inability to not post about every moment of their lives. They think that the entire world is waiting for their next post. If you need a laugh at this point, read the article from the Onion I have include in the Resources below.
I would caution the jurors against researching the case, or the witnesses or posting anything about the trial. I outlined the dire consequences to the parties should there be a violation. I did this at the end of the day and at every break. Nevertheless, I still found myself dismissing jurors and bringing in alternates for those who could not follow the rules. Although rarer, some cases have been returned for trial when misconduct was discovered after the verdict.
Enlist the Judge
Jury selection procedures vary widely by jurisdiction and by judge. Case specific juror questionnaires can help you uncover those jurors who may be so biased that they cannot follow the judge’s instructions. In my opinion, the key to getting judges on board is to convince them that case specific questionnaires will save time.
Good judges are very concerned about wasting the jurors’ time. A juror who thinks that we don’t care about their time will not be a good juror…for either side. If sent well ahead of time some jurors may be eliminated immediately by agreement of counsel and the court. No one wants to waste time on a juror who clearly cannot follow the rules.
I believe attorneys who are great uncovering biases that may override the judge’s instructions do two things. First, they create an atmosphere where the jurors feel comfortable talking about their likes and dislikes. This sometimes comes in the form of the attorney revealing their own bias for or against certain things. Or it may be the attorney saying that there are many cases in the courthouse and that some jurors are better suited for other cases. It is no reflection on them. It is simply a fact of life.
Second, they address the elephant in the room. If they represent an insurance company, they ask if the company will receive the same justice as would an individual. If permitted, they invoke the instruction that all parties must be treated fairly and in the same manner. They also use the tool of having each juror verbalize that they understand this and will apply it. Professor Jolly notes that, “… studies show that voir dire questions as to potential biases can help limit the impact of those biases during deliberation and issuing a verdict.”
Political Polarization
In a jury trial each party is entitled to a “fair cross-section” of the community. This “cross-section” has never required a mix of political parties on each jury. In fact, in some locales this would be very problematic.
However, given the current climate I suggest we address it head on. Most judges frown on attorneys asking about political affiliation. I think it is naïve to believe that you can discern how a juror will decide based solely on whether they are a Democrat, Republican or Independent.
What about questions such as, “I’m not going to ask if you are a member of any political party, but are any of you going to decide this case based solely upon being a member of a political party? Will you set your party affiliation to one side and follow the law as the judge states?”
After all, only light can defeat the darkness.
Postscript:
This topic is huge. It is impossible to cover it in a 1200-word article. So, I have expanded the Resources section. Professor Jolly ends his article with the hope that in the jury room perhaps hyper-partisan politics will be put in the corner as jurors from every political persuasion come together to decide on a fair and impartial verdict according to the law as given. He quotes Alexis de Tocqueville, “By making men pay attention to things other than their own affairs, [juries] combat that individual selfishness which is like rust in society.”
This article first appeared in Litigation News (ABA) Fall 2025, Vol. 51. No. 1
Resources:
Richard Loren Jolly, Red Juries & Blue Juries, 57 Ariz. St. L.J. 229 (2025)
Jonathan A. Porter, Will Juries Latch onto Deepfake Concerns Like They Did to Scientific Evidence During the Infamous "CSI Effect"? , Criminal Justice Section, February 8, 2024
Clint Townson, The Juror’s Badge of Courage, Litigation Journal, Summer 2024
Sari W. Montgomery, The Dos and Don’ts of Using Social Media in Jury Selection, GPSolo Magazine, February 16, 2023
Jeffery T. Frederick, Mastering Voir Dire and Jury Selection: Supplemental Juror Questionnaires, ABA, May 7, 2019
Litigation Section, The What, Why, and How of Case-Specific Juror Questionnaires in Business Litigation, ABA Learning Center, On Demand Course, Recorded June 16, 2025
Hon. Mark Drummond (ret.), “Voir Dire: Don’t Let the Judge Cut You Out,” Litigation News, (Spring 2012)
Area Woman Decides Not To Post Facebook Status That Would Have Tipped Gun Control Debate, the Onion, January 11, 2013
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