The most important thing in jury selection is to identify jurors who will decide against your client even before any evidence or very little evidence is presented. The type of juror in this category is usually not shy about expressing their views of insidious corporations prioritizing profit, for example, or greedy plaintiff lawyers clogging up our judicial system. Other than a “stealth” juror hiding their true underlying beliefs to try and be seated on a jury to steer it in a pre-determined direction, most jurors with extreme attitudes will speak up about such attitudes in voir dire and be struck. One of the challenges in jury selection is not necessarily finding the type of juror with extreme and unbending views but spotting the jurors who will revert to their own more mild biases and beliefs instead of assessing the actual evidence. This “second tier” of prospective jurors is where the battle lies, since cause challenges and some peremptory strikes will be used on jurors with more diehard and fanatical perspectives. And even though this type of “second tier” juror may not be as militant in their views as those with obvious bias, many of these jurors will see what they believe as opposed to believing what they see with their own two eyes, making it crucial to understand exactly what it is they believe. There are many examples inside and outside the courtroom of seeing what you believe.
It does not take long for the court of public opinion to render a verdict following a law enforcement shooting when it is caught on video and widely disseminated. Emotions run high when assessing the actions of an officer who made a quick judgment during a high-stakes encounter. The shooting deaths of Renee Good and Alex Pretti, Minnesotans involved in protesting the presence of ICE, are the most recent, visible examples of calling into question whether their killings were legally justified. Was Ms. Good trying to run over the ICE officer with her large truck or was she trying to drive off with her wheels turned away? Was this officer impulsive due to feeling emasculated since he wanted her to not drive off? Did an officer think Alex Pretti was going to use his gun to harm multiple agents in any way? Did the ICE agents reflexively panic upon seeing Pretti had a gun holstered at his waist? These are the questions jurors would have to answer in a trial of those who pulled the trigger. But there is room in the process for subjectivity to enter into the interpretations of whether the shooting(s) were justified.
Looking at video provides clues, but the legal question typically has to deal with some variation of whether a reasonable officer under the same circumstances would believe the “suspect’s” actions placed the officer or others in the immediate vicinity in imminent danger of death or great bodily harm. This is a subjective test, as most jurisdictions include an instruction that it is not necessary that this danger actually existed. If someone pulls a gun at an officer with no bullets, an officer is justified to use deadly force since s/he wouldn’t know the chamber was empty. In many venues, jurors are told that their assessment of the officer(s) has to be based on what the officers knew at the time of the shooting, not based on what is presently known. This is to help stave off hindsight bias, where jurors rely heavily on the ultimate result (deadly shooting) when assessing whether the officer(s) was being reasonable.
There is no denying that video footage has changed the way jurors (and the public) judge police shootings. Prior to having video of an incident, jurors had to rely on the physical evidence and witness testimony, including that of the defendant officer(s), to reconstruct whether a shooting was justified. Video footage is valuable evidence, but like other pieces of evidence, jurors will evaluate video through their own subjective lenses which allows their experience, attitudes and pre-existing beliefs to help arrive at a legal interpretation. This is why when the public is asked about the recent Minneapolis shootings caught on video, it isn’t that 100% think it was justified or 100% unjustified, illustrating that even when given the “luxury” of replaying the shootings to assess the specific actions of the officers involved, some people do see what they believe instead of believing what they see. A very close sibling of this phenomenon is known as motivated reasoning, a topic for another blog. If any of these matters ends up in court in front of a jury, voir dire would consist of questions that get at how jurors will likely assess the video. What do jurors think of ICE? Police shootings? Protesters? ICE-specific protesters? Where is the line between peaceful protesting and disrupting law enforcement? Immigration in this country? A discussion of these topics would give lawyers a meaningful window into what jurors believe which would in turn affect how jurors would evaluate the key piece of evidence in the case, the video.
