Derek Chauvin Trial: Jury Spotlight
RadioEd is a biweekly podcast created by the DU Newsroom that taps into the University of Denver’s deep pool of bright brains to explore new takes on today’s top stories. See below for a full episode transcript.
Across the U.S., all eyes are on the Derek Chauvin trial, which will decide whether the former police officer is guilty of murdering George Floyd last May. But no one will be listening as intently as the jurors tasked with delivering a verdict. Over two weeks, 12 jurors and three alternates were chosen from a pool of more than 300, and these individuals will hear one of the most high-profile cases in recent memory. Law professor John Campbell joins RadioEd in a conversation about the ethics of jury selection, the impact it can have on a case and how this trial might play out.
Show Notes
John Campbell is an associate professor of the practice of law in the University of Denver's Sturm College of Law. Campbell also runs Empirical Jury, a jury consulting group.
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Transcript
Alyssa Hurst:
You're listening to RadioEd, a University of Denver Podcast.
Lorne Fultonberg:
We're your hosts, Lorne Fultonberg.
Alyssa Hurst:
Alyssa Hurst.
Nicole Militello:
And I'm Nicole Militello. Right now, Derek Chauvin's murder trial is unfolding in Minnesota. He's the former police officer facing charges for the death of George Floyd, which sparked protests across the country and around the world last year. While we're watching closely from our homes, 12 jurors and three alternatives are carefully listening to and analyzing every shred of evidence, in the hopes of coming to a decision. That jury is made up of nine women and six men. The court says, "Nine of the jurors identify as white, four identify as black and two identify as multiracial. And their ages range from in the 20's to in their 60's."
Nicole Militello:
Now these jurors have the power to make a decision that will not only impact the families of Derek Chauvin and George Floyd, but will also send a greater message to society. So what are the prosecution and defense looking for in a juror? How important is the selection of a jury and what might this mean for the Chauvin trial? We asked DU law Professor John Campbell, to join us and break down how this whole process works. Starting with selecting the people who will make this major decision.
John Campbell:
Yeah. So jury selection, although it varies a little from court to court has some common features. So the first thing is, is that there's always going to be more people who are called to jury duty than end up on the jury. And that the idea behind that is that, in any given case there's any number of reasons that some people who showed up for jury duty might not be a good fit for one side, or the other. Some of those are really mundane. It might not even have to do with one side. So it might be, "Hey, this is going to be a two week trial." And somebody raises their hand and says, "My son has surgery in four days and I have to be there." And the court says, "You're gone." Somebody says, "I have a job interview and it's very critical that I attend and it's during trial." And they're gone.
John Campbell:
So there's attrition for a very basic pedestrian things. Then you have what happens next in jury selection which is, you have some number of people that the attorneys are talking to and learning about and the court might be asking them questions too. And you can imagine that, for example, in a criminal case if somebody raises their hand and says, "I've had a number of interactions with the police, I don't trust the police and there is no police officer who could testify that I would ever trust under any circumstance." Well, of course the prosecution doesn't want that juror and the court might even agree that that juror's views on life, for this case, mean they'll struggle to listen to the evidence. Somebody else might raise their hand and say, "I'm so sick of the police being harassed. I think black lives matter is a terrible idea. I back the blue. And if an officer says that, I believe it because they're heroes." Well now the defense really doesn't like that juror and the court might agree that they too, don't sound exactly neutral.
John Campbell:
And so things like that happen through selection and the purpose of the questions by the lawyers and the court, in a good setting, are to find the predisposition. We might call them biases, but it's not a negative word. But these preconceived feelings that might impact the juror's ability to decide the case. The goal being, I think in most courts that do this carefully, that we exclude the outliers on both sides that would be very likely to vote for one side or the other, despite what the evidence might be. And then we get people who can listen. They're all going to have their life experiences and that is good.
John Campbell:
In fact, the literature on jury deliberation tells us if we have a nice diverse jury, not diverse just racially, but diverse in lots of viewpoints, you actually get a more robust discussion and you're more likely to get to the real facts in the case, in the real decision. So that's good to have diversity but it's not good, and the research confirms this too, to have people that have such deep biases that they've decided the case before it started. So, that's jury selection in a nutshell. Is to take a really big group and filter through a variety of filters to end up with the goal being, a jury of the people's peers who can reach a fair and just decision.
Nicole Militello:
Is there another layer of screening for jurors? Would they look at their social media and realize, "Oh, hey, you have liked certain photos or you've posted certain photos." Is there any extra layer of screening?
John Campbell:
So, yeah. So if we want to talk about the maybe spooky part of jury selection but certainly happens is, let's imagine that you've done a detailed study of what are good and bad jurors for you. And you know for example that, people who consume a lot of Fox News are bad for you in a case. Well, you could ask people but they might lie. But if you screen all their social media and you find that they have posted 18 things from Fox News, then you know they watch Fox News whether they tell you they do or not. So in high profile cases it is very common that attorneys on both sides if allowed, and every state has different rules about how much you can do, are digging in and doing background research on jurors. So much so that I've been in some cases where the other side, it was clear to me had picked the jury before they showed up.
John Campbell:
They already knew who they wanted to see, who they were afraid of and what their dream jury was before they asked the question, because they'd had a week of background digging. And with a week of background digging, they'll pull their financial records, if allowed, they'll pull their voting records, if allowed, they'll pull their political donations, they'll pull their social media, they'll pull their known associates, they'll pull their job history. They'll look at their house, they'll look at what cars they drive. And before the jurors ever sit down, they will have that person profile pretty well. And they'll know whether they want them or not.
Nicole Militello:
How much can the makeup of a jury and the people on it, impact the outcome of the case?
John Campbell:
So the makeup of a jury, I think is the single most decisive factor in case determination. And so, for example, I know a number of lawyers, including myself, who view the jury selection process in our trial as probably at least as important as all the other things combined, which is saying something. When you think you've worked on the case for years, you might try the case for weeks, there's thousands of pieces of evidence and dozens of witnesses. But what we know, and I've done some research at the University of Denver along with a Professor named Valerie Hans at Cornell, a Professor named Lee Ross at Stanford, and a Professor named Jessica Salerno at Arizona state. We've studied this question and what we found is, is that certain biases, depending on the case, are highly predictive of how jurors will vote.
John Campbell:
So much so, for example in a civil case, we found that people who believe that civil lawsuits are bad, they hurt society, overall we have too many of them, overall jurors give too much money in civil cases. Overall, there ought to be caps on how much a jury can give. We found that those people were something like three times as likely to vote for the defense. So you can imagine if you seated a jury of only people like that, the defense would be three times as likely to win as an average jury. On the other hand, if you sat a jury of people who said, "I think lawsuits are good, they hold companies accountable, we need more of them. I love lawyers who bring them." You might be three times as likely for the plaintiff to win. And the only thing that would have changed was composition of the jury. The evidence would be identical. So we know that who we seat and who's in that box, the jury box, that can be absolutely outcome determinative.
Nicole Militello:
So if so much goes into carefully crafting who is on this jury, can it really be considered an objective jury?
John Campbell:
So it's a great question. The answer is actually counterintuitive. I would say it's the only way that you could say the jury is fair. Because what we know is, is that from lots of different measures, in any given population of people, for any given case, there'll be a lot of people who have biases that make the case hard. And without being boring about it, if you were talking about a case where the doctor is accused of not diagnosing cancer in a civil case, people who've had experiences with doctors making mistakes, or who've had a loved one die of cancer might view that case very differently than somebody else. If you're talking about the George Floyd case, for example, people who've had experiences with excessive force by police, may view the case radically differently than people who haven't. If you don't go through careful selection, you could accidentally very easily seat a few people who really can't listen to the evidence or don't want to. Who say, "Look."
John Campbell:
In the George Floyd case, imagine if you had a couple of people who said, "I don't care what they prove or don't prove, I already know what I think about this case and I know what I want to do for social justice." Or, "My uncle is a police officer, my father is a police officer, my brother is a police officer and I will never hold a police officer liable because it's a hard job." If you don't ask questions, you could seat those people and they're not listening. And in that sense, it makes the entire trial irrelevant. If instead, you try to find those biases, exclude those people, what you get are people in the middle who say, "Look, I might have some views, but they're not fixed. I'm listening. I don't know. I can see both sides of this case and I understand each sides views at least generally."
John Campbell:
Those people then, when they sit down in deliberation can have a good, honest, robust discussion and reach a result. And so I think, although people often think, Oh, but they're trying to engineer the case to have their best jurors. That's true. But both sides do that and the court oversees it. So what you really end up getting in a good process is, you throw out the really in the tank for one side and in the tank for the other. The people who would never really think, and you get the people in the middle.
Nicole Militello:
Okay. Let's talk a little bit about Derek Chauvin's trial specifically. So the potential jurors were sent a 16 page questionnaire. Can you talk to us about what questions they were asked and how those were considered, moving forward with the process?
John Campbell:
Yeah. So I looked through that questionnaire with great interest because it's not all cases that have questionnaires. But of course, in high profile cases where they expect a lot of people know things about the case and there's more bias in the population on both sides, questionnaires are a fast way to learn things about jurors before you ever bring them into court. So if you look at that questionnaire, it's interesting. It has some very standard things you would see on lots of questions. Where do you get your news? How do you view the world? Things that help us start to understand how jurors think a little. It also has a lot of really concrete questions about, do you think, for example, that black people are more likely to experience excessive force than white people? Do you think that police officers in Minnesota, in that setting, they tend to use force too often?
John Campbell:
Have you ever had an experience with the police in which you believe that they treated you poorly? It had a matrix even said a variety of statements, like I've just said, and then say strongly agree to strongly disagree with scores. So that each juror could, in theory, be scored on a bias scale. Highly police favorable, highly Floyd favorable, so to speak, right? And so that questionnaire I know, was used to, internally on each side, figure out their favorite and least favorite jurors. It was also used by the court to flag people who, "Hey, we don't even need to talk to them. They have such a personal feeling about this case or so much knowledge or so much connection, that we shouldn't even bring them into court because there's no way they should be a juror in this case." So, that's how they used it moving forward was, is an initial screen. And then the lawyers were allowed to follow up when they had questions for people, who did still come to court
Nicole Militello:
After the questionnaire, they're brought in and then they're asked questions by the judge and then both sides. So what is each side looking for and what does that process look like?
John Campbell:
Yeah. So there's two things going on usually. So typically, the prosecution goes first in a criminal case. And there's at least a few things going on. So one thing is, is that, to the extent the court allows it, both sides like to preview the facts of their case a little bit. It would be dishonest for lawyers to say they don't like to start to persuade the jurors a little. They want to build a relationship with the jurors, they want the jurors to start to like them and trust them. And they might even want to start getting out some of the core things that maybe they'll say in court later. There's two reasons for that. One is probably, I'd love to preview my case to the jury. The other is you got to see if there's people who just won't listen. So for example, if the prosecution said, "Look, a couple of witnesses in this case are going to be officers. And we're going to build our case with officer testimony and we need to know, are you willing to listen to officers?"
John Campbell:
Then they're going to listen for jurors who say, "Hey, I think officers lie all the time, I've seen them lie and I won't listen to an officer. And if all you've got is police officer testimony, that'll never be enough for me." Of course, the prosecution needs to find those jurors because the case is over before it starts with those jurors. On the defense side, similar goals in that you want to build trust and relationship. You want the jurors to start to feel you're being candid and fair with them. But of course, they're looking for the opposite. They're looking for the people who say, "Look, I used to be an officer or I have a family member who's an officer or an officer saved my life and I just don't think I could ever bring myself to find an officer guilty, no matter what you show me because I just think on net, I don't want to do that."
John Campbell:
They've got to find those people or else the cases over before they start. And throughout these questions, the goals are always that; to find the jurors who have biases. Now, we haven't talked about it but it's an interesting side note is, typically what happens is the attorney study these cases before and they already know a lot of things that are good and bad for them. So what they'll do is, they'll present their case to dozens or hundreds of mock jurors. They'll ask them the same questions that are on that questionnaire. And then they'll see, "Oh, you know what, when we win, we win more with people who said this on the questions. And we lose more with people who said that."
John Campbell:
So they have what we would call predictive analytics. They know, all right, when I go into court people who scored, let's say they scored a 20 on that scale we talked about earlier where you strongly agree to strongly disagree to questions. If they score 20 or better, they're really good for us. If they score 10 or less, they're terrible. Well, they're going to look at those questionnaires, start looking for the good and bad jurors and then go talk to them to see if it's still true and try to see if they can figure out how to keep the good ones, and get rid of the bad ones.
Nicole Militello:
Interesting. So those mock jurors, those are just people who have agreed to participate in answering those questions ahead of time? Or how do they find those people?
John Campbell:
Yeah, it can be done a lot of ways. So I actually, outside of my role at DU, I have a company that does this.
Nicole Militello:
Mm-hmm (affirmative).
John Campbell:
And what we do is an attorney calls us and says, "I want to study a case." And we look for workers, often online workers. And we can recruit, for example on a given case, 500 people that will review the plaintiff and defense or prosecution and defense case. And what's neat is, is we have 500 people review a presentation of evidence. Which usually is written, images and video and they're just watching it on their screens. And then you have them vote. Will they vote for liable or guilty depending on, if it's criminal or civil? They tell you why they did it. You can do all neat things. Then you can do statistical analysis on, how likely are you to win? Which jurors are good and bad for you based on their demographics? Based on their answers to all of your questions? Based on the questionnaire?
John Campbell:
And then you've got these people who were maybe logging on to do whatever work they found there. Their workers who edit books online or whatever else and they saw a jury study.
Nicole Militello:
Mm-hmm (affirmative).
John Campbell:
You pay them and what you get is a massive amount of data. And I can tell you with absolute confidence that in the case of this profile, some form of that analysis has happened and the attorneys entered the courtroom already with some idea of what would be most favorable to their side, and who they should be very afraid of.
Nicole Militello:
During the questioning for this trial, some people express that they were concerned about their safety if they were chosen, others said that they couldn't manage the stress and trauma related to serving on this jury. So how are those comments taken into consideration?
John Campbell:
The attorneys might take them into consideration. They may have their own views on whether that's good or bad. There's two ways jurors get thrown off of a jury. One is, what's called a peremptory strike. And what that means is, each side is allowed to excuse some jurors for no reason. So they don't have to give a reason. They might have their own reasons internally like, "Hey, on our scoring system, they're a bad juror." But to the court, all they have to say is, "Your honor, I would like to exclude juror number 12, using one of our peremptory strikes." And the court gives them three or six or nine, depending on the case, how many to use. The other way jurors get off, is for cause? And what that means is the court is convinced that there's enough evidence, that that juror is not appropriate for this case.
John Campbell:
So in a situation like you're talking about if somebody says, "Look, every day that I'm sitting here, I'm not going to be thinking about the evidence, I'm going to be terrified for my safety. And I don't feel I can go back to my community safely after rendering a verdict in this case." The court may very well, for cause, exclude that juror because they don't want to put a juror in that situation. And it calls into question, whether the juror would be able to do the job.
John Campbell:
So when that kind of thing is voiced, most courts will err on the side of excusing those jurors for two reasons. One, it's the humane thing to do. The other is, is that in a case like this, what the judge doesn't want is to get done with this whole trial and get a verdict, whatever that verdict is, and then have it go up on appeal and the appellate court say, "Yeah, but you had a bunch of jurors on that case that you shouldn't have had." So the typical sort of default then is, let's try to pick a really safe jury where people really did say they can listen and be fair and they don't have anything so obvious, that makes us think they can't. So that if we go through all of this, we don't go through it twice. We don't get reversed and do it again.
Nicole Militello:
Okay. So how can we make sure that all voices are given a fair chance during jury selection? Because one of the woman that was questioned said that she was a single mom, that she wasn't going to be able to find childcare for four weeks. Or if we have hourly workers that can't afford to take off for the trial, how can we ensure that these voices are still being heard in this process?
John Campbell:
Your question is really insightful and unfortunately the answer is not totally satisfactory. I would tell you that there are what we call, selection effects and who ends up on juries and they start really early. So for example, in some places they only call people to jury duty who are registered to vote. That's how they find the list of people to call. So of course, if you didn't register to vote, you are an equal citizen in that community but now you're not called. In some states, they use driver's license data. So if you're a poor working class person who takes the bus to work, you never get called to jury duty. So before we ever get to the courtroom, there are problems with who gets called to jury duty. And I would tell you that, I think it's pretty clear that who shows up for jury duty is not fully representative of the community. Which is a problem to start with.
John Campbell:
And then we have the problem you just described. Which is now, who's most likely to be able to serve? Well, the elderly, retired people who are not having to go to work are more likely to be able to serve. Wealthy people are more likely to be able to serve, people from homes where you have two people working so that one can cover for the kids are more likely to serve. People without children are more likely to serve. And so I think that the hard answer is, we don't have a fully representative group in any jury. And it is true that single mothers, or working class, the poor, the people with less access to transportation all those things. In the digital age with all those zoom trials that have been going on in the civil side, we've had the same problem. Which is, if you don't have good wifi, if you don't have a good computer, if you don't have access to technology, if you just don't know how zoom works because you don't get on business calls, we've seen those people underrepresented in juries.
Nicole Militello:
And studies show that black jurors are struck at a higher rate than other jurors. And an NPR story talks about how the experience that comes with being black in America, is enough to get juror struck from a case. And so there's a lot of talk around this jury and how it's more diverse than the county that it's being tried in, which is 74% white. So what is different about this jury case selection?
John Campbell:
Well, I think because this is high profile, we're seeing the very best efforts at jury selection. I would tell you that it is a sad truth in America that in some cases, including criminal cases, sometimes a jury is picked in under an hour. And you can imagine that there's no way that we dug into the biases of every juror and we're-
Nicole Militello:
Right-
John Campbell:
... careful to make sure. And I have seen cases where all three strikes by the defense or the plaintiff, one side or the other, or the prosecution were black jurors. And the problem is, although you're not supposed to strike based on race, it is very hard to prove that. Because when you raise the challenge to the court and say, "Hey, all black jurors were struck." If the other side says, "Well, yeah. But one was a hairdresser and we have something that says that people who like to talk a lot, aren't good for us. And one expressed this view and that's why we did that. And so it's coincidence that they're all black."
John Campbell:
It's very hard prove otherwise. So the reality is that we often see very imperfect juries. I think in the Floyd case the good news is because the world's watching,
Nicole Militello:
Mm-hmm (affirmative).
John Campbell:
... they spent basically two weeks picking that jury, which is unheard of. That's an amount of time that is unheard of. They sent out questionnaires first, they talked to each juror sometimes for hours. And so what we got was a genuinely diverse jury. I think that's wonderful and I think it means, the literature is clear, we'll get a better deliberation and a more fair result, whatever that result is. But I think if people were to believe this is how most criminal juries are picked, they'd be sadly mistaken because this is the exception, not the rule.
Nicole Militello:
Yeah. Is there talk in the law world of, what maybe could be done to make the jury selection process more inclusive? To make sure that we are reaching these voices that we've talked about, that aren't usually being placed on a jury?
John Campbell:
Yes. So there's two ways to go at that. One is, we're publishing a paper this year, the same authors I mentioned earlier, that shows that you do have to invest real time in jury selection. And there's a tendency for judges to say to jurors, "Hey, I know you all have your biases, we all do. But can you set them aside and be fair?" And what we've found in our research is, that's a meaningless question because everybody will say, yes but that doesn't mean they can. They might really want to, but it's not so easy to take our deep rooted biases and simply set them aside. So one of the solutions to start is, we have to be willing to invest time in jury selection and we have to call more jurors to selection with the idea that, "Hey, we might have to throw out 30 or 40 or 50% of all the people who showed up before we get that diverse jury."
John Campbell:
Of course there's always talk about, raising the pay for jurors. You could imagine that if we had a law that mandated that if you serve on the jury, your employer must pay you your full time pay. You had paid leave. That, that would change things dramatically
Nicole Militello:
Mm-hmm (affirmative).
John Campbell:
because we don't have that. And so somebody can can say, "Well, I could come and serve for jury duty, but my employer is not going to pay me and I can't live off the jury pay." Well, you either have to solve that with more jury pay or more legal protection for the people who serve. And then I personally believe that we have to look at how we call jurors, so that we're doing a more effective job of calling juror from the entire population to start with. So that we don't have a problem before we even start talking to them.
Nicole Militello:
With such a high profile case, especially like this one, how hard is it to find jurors who are open to hearing that advice? And then what signs do the defense and prosecution need to have and see to actually believe them, that they are open to hearing that evidence?
John Campbell:
Yeah, it's a good question and it's tough, right? And especially in a case like this, where you would have had to have lived under a rock, not to hear of it, right? I think they had to accept. And if you look at the jurors they seated, you see that they realized they could never pick a jury of people who said, "I just don't have any preconceived notions." So, I think what they looked for, were people that at least showed real and genuine indicia that they weren't locked in.
John Campbell:
And I can tell you having picked juries, sometimes you can hear it in the answer. So some jurors will say, "This is what I think, and this is it and I feel very serious about it." And it's all for one side. There were other jurors who, as they start to talk to you say, "Well, look, I think based on what I know, I'm leaning this way. But I did hear this other fact and it made me wonder, I don't know. There's a lot I'd want to know. And if I heard these things, then I can think about it more."
John Campbell:
And what you hear as a deliberative person who sounds genuinely open, which is reasonably hard to fake. And I think most attorneys are looking for that. They're looking for someone that shows indicia of curiosity, who shows that they are self-critical of their own comments. And if you can find that, you feel you have an honest chance, right? And I think they were given enough time in this case to get to do that. To get to actually listen to people and hear whether they were so dogmatically locked in, or that they were showing signs that they're going to listen.
Nicole Militello:
And do you think with the jury that's been selected for this case, can we tell yet how the makeup of the jury might affect the outcome of the case?
John Campbell:
Well, I don't have analytics on this case. But I've studied cases very similar to it in the private setting and the academic setting. I will tell you that the fact that the jury is female was probably not an accident, certainly on the prosecution side. There is some literature that would suggest that a female jury might be more likely to convict in this setting. There's some of that. I think the fact that the jury has far more black people on it than maybe if you just had the percentages from the population, it's hard to believe that's ever going to hurt the likelihood of conviction. Because we've seen in cases that when you have this racial element like this one, and you have black lives matter and blue lives matter head to head in a case, that black jurors see the world differently because they've had different experiences with the police.
John Campbell:
And so, if I handicap this case on selection, I'd say the prosecution won the selection battle. They have a jury that a number of people expressed some negative feelings about the police. Some levels of sympathy for black lives matter. And those jurors were seated and we'll wait and find out because deliberation means that they'll really work through it. And one tough juror who really makes everybody ask hard questions will mean they have good discussion. But if I had to call it based on the evidence and the jury, I'd think the prosecution's ahead.
Nicole Militello:
Anything that we haven't talked about that you think is important, that we should mention?
John Campbell:
People in the US we've had a tendency, in the last 20 or 30 years, to question the work of juries. I think they became very popular in the media to talk about, the runaway jury who gave too much money or the runaway jury who did this or some jury fell asleep. But what I will tell you is, is as a jury researcher who's gotten to know, I think, every single good jury researcher in the country, all the academics that have been doing this, some of them for 40 years. That what the evidence is absolutely clear on and what all those researchers agree on, even if they agree on nothing else, is that jurors take these jobs very seriously. That when they get in to deliberation, they work very hard. That because there's 12 of them in a room, they rarely make factual mistakes. Because even if one person says, "Well, I heard this and they're wrong." There's four others who took notes and say, "No, that's not how it worked."
John Campbell:
And that, although no system is perfect, allowing a group of everyday individuals to work through the facts is, to my mind, still the best way we know to avoid bias decisions. To take the decisions out of the hands of one judge or one person and put them in the community's hands. And in that way, I am deeply satisfied to see that they worked hard to pick a fair jury in this case. Because I think that when we get a result, we're much more likely to get one that was carefully considered and free of bias than if we had thrown this to any one person.
Nicole Militello:
To read more research about jury selection, visit our show notes at du.edu/RadioEd. Alyssa Hurst is our executive producer, James Swearingen arranged our theme and Tamara Chapman is our managing editor. I'm Nicole Militello, and this is RadioEd.