Jury Selection: Simple Rule 3: The Shrek Rule
They are once again on their way. They are walking through the
forest. Shrek belches.
DONKEY
Shrek!
SHREK
What? It’s a compliment. Better out
than in, I always say. (laughs)
DONKEY
Well, it’s no way to behave in front
of a princess.
Fiona belches
Thence, Rule 3 of the Simple Rules for Better Jury Selection: the Shrek Rule of Jury Selection: Better out than in. It’s related to the “hair in the food” rule. If there’s a hair in your food (and there always is), better that you should find it; if your jurors have unpleasant or frightening ideas (and they always do), better that they should reveal them in jury selection than conceal them till deliberation.
In jury selection, all untruthful answers are bad. If there are bad truthful answers, though, they are not what most trial lawyers are used to thinking of as bad. A truthful “I think the government is always right”, for example, might be a terrible answer … for the government, for the same reason that it’s a great answer for the defense: it allows the defense to identify, isolate, and strike a raging pro-government juror who, if he’d kept his mouth shut through jury selection, might have carried his views into the jury room. (It also gives the defense a convenient foil for uniting the reasonable remainder of the panel against such loony notions—perhaps a topic for another day.)
Sometimes lawyers are concerned about these jurors “poisoning the entire jury panel.” Except where jurors reveal prejudicial facts that won’t be part of the case, I don’t buy it. People leave jury selection believing what they believed going in. The juror with off-the-wall opinions might push other jurors to entrench their contrary views, but he is no more likely to change his fellow jurors’ minds in an hour of jury selection than you are.
The Shrek Rule dictates that the lawyer should, rather than trying to shut up (or, God forbid, not listen to) the people who have views that would be unhelpful in jurors, draw those people out and encourage them to share and expand upon their views.
How? Listen attentively (and actively, Dr. SunWolf), thank them, and ask how many others agree. The more people agree with him, the better: better out than in.
About The Author
I agree completely with you. I don’t think there is “contaminating” in instances where people are sharing the feelings they have had for a long time. Another is not going to suddenly change their beliefs & follow the speaker.
When I have someone say something “bad”, I find the others that agree with them, and then give them an out — ask someone, perhaps even one of those whose opinion is against me how it might me concerned to have him/her on my jury — and then get others to agree. I give an example of the kind of jury I would not be good on — like a burglary (not whatever I’m trying, for certain) & why. Usually you can get the jurors with the “bad” opinions to agree that they would fine jurors, in a different type of case but probably not in the case at bar.
Like the series, Mark. Good advice!
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