Jury selection in Connecticut is unique. We speak to each potential juror outside the presence of all other potential jurors. Thus, it sometimes takes longer to pick the jury than it does to try a case. There's plenty of time to experiment in such a voir dire: If you try something that does not work, simple excuse the juror and move on.
I've just finished four days of jury selection in a criminal case. Toward the end of the process, I tried something new. I think it works. I will pass it along here for whatever it is worth.
Bedrock constitutional law holds that a defendant is presumed innocent. It is the state's burden to prove guilt, and this guilt must be proven beyond a reasonable doubt. A defendant has a right not to testify, and jurors cannot hold a decision not to testify against the accused. Simple building blocks, really.
But they avoid a larger issue. Guilt is a loaded concept. A person can be innocent of the crime charged while guilty of all sorts of other things. Guilt is, after all, ubiquitous: ask Woody Allen. How do we keep the sense of residual guilt lingering not so far beneath the surface of anyone with a conscience from spilling over the lip of the state's cup and tainting a defendant?
Criminal court is a frightening place. It is not joy that brings a group of jurors together. A life has usually been torn, or even destroyed. The sense of order on which we all depend has been shattered. Jurors are called upon to determine what shall become of a person. What brings a group of folks to trial is usually a troubling event. That event may or may not reflect the commission of a crime.
"What do you think of when you hear the word guilty?" I asked that of several jurors the other day.
"That someone did something wrong," was a common response.
"What sort of thing did they do wrong?" This yields an odd, even disconcerting, response. Christians say all have sinned and fallen short of the glory of God. But we are not talking about sin here.
"Do you understand that the term guilt has a religious and moral context that is altogether different from what we talk about in a criminal court? Here a person is guilty of a crime only if the state can prove the person acted in such a way as to prove the elements of the crime charged?"
A juror will listen, attentively, wondering where you are heading.
"Are you open to the possibility that the state's case may fail but that you may still be troubled by the allegations against my client?"
One potential juror was confused.
"What I am trying to say, sir, is that term guilty has different uses. A person can be morally guilty while having committed no crime at all."
The venireperson seemed startled by this. So I forged an example.
"You have heard of the seven deadly sins?"
"And you would agree these are moral failings calling forth a sense of guilt?"
"Let's consider gluttony, one of the sins. A person could be guilty of that sin without his conduct ever satisfying the elements of any known crime. Does that make sense?"
The juror agreed. And I felt in this case that I had received permission to explore murky terrain without worrying that a gratuitous sense of guilt would somehow smear my client.
This is risky voir dire. It invites a jury to think less of a man or woman they have never met. It is not the sort of voir dire, I suspect, you would want to use in every case.
But in those cases where the uncontested facts are unsettling it may well be helpful to defang the concept of guilt. A criminal courtroom is not a forum for a moralists. It is a place to test the allegations of the state. It would be a far better thing to excise the term guilt and banish it from the room. The state either satisfies its burden of proving a crime or it does not. In the meantime, we are all guilty, of something, somewhere, sometime. Ask Woody Allen.