Should you strike jurors who believe in Bigfoot?
We can hear it now, “Your Honor, we would like to strike for cause all prospective jurors who believe in Bigfoot.” While it is likely such a request would hit the papers, it is unlikely any judge would grant that sort of disqualification. Yet, according to a recent survey, almost 1/3 of Americans still believe in the existence of Bigfoot. There is even a current television show, now starting a fourth season, called “Finding Bigfoot”. Whether you think it ridiculous or not, Bigfoot lives. If you experience the popular belief in Bigfoot as being kind of depressing, get in line.
We don’t recommend using random conspiracy beliefs, or random fringe beliefs (such as alien abduction, the moon landing, British government involvement in the death of Princess Diana, or the US government involving in the terrorist attacks of 9-11-2001) to attempt to strike jurors. Why? Well, because there are so many times when conspiracy theories tailor-made to your case spring up during pre-trial research and help you figure out how to avoid giving the conspiracy theorists in the room a foothold. And sometimes, they come up in the most unexpected moments and in cases that seem, on the surface to be dry and technical. Who would have thought they would be so laden with sex, drugs, and inappropriate behavior?
Wrongful termination: “That girl was just leading him on for drug money. I think the company principals put her up to it so they could fire her boss. He thought she really cared about him and that’s why he gave her that promotion and a company car. Did you see how she was sniffing in her deposition? She is obviously on cocaine.”
Breach of fiduciary duty: “Wow. She is so much older than him. What’s going on between those two? She ended up moving to a new company with him and now he is her boss? Hmmmm…(with knowing glances to other jurors).”
Breach of contract: A mock trial just this past month included a very normal looking, retired high school English teacher who we’ll call Victoria. As she viewed the deposition excerpts she was consistently critical: “He needs a haircut”, “Her hair is certainly a very odd color”, “Who dressed him for deposition?” but her nature came through even more clearly when the group began to deliberate.
The observation room was filled with half a dozen attorneys whose jaws collectively dropped when she turned her venom on a fellow mock juror who mildly disagreed with her by saying, “Oh, I don’t know, I thought the witnesses for that party were pretty good.” The retired teacher drew back like a snake about to strike. “WELL! That’s your opinion. I don’t need anyone to tell me what I think!” And she refused to entertain any suggestions that her opinions might be a little off-kilter. General Counsel for our client leaned over and said quietly, “Do you think we can come up with a Victoria filter?”.
Or you may hear tantalizing comments on a wide variety of case topics that give you clear intimation someone is leaning toward some sort of secret or conspiracy.
“I think the doctor and nurse had an affair and it ended badly.”
“I think they did steal the idea from [the inventor] and they are paying off their researcher to take the fall for it so they can blame him and not the whole company.”
“I have a feeling something strange is going on here and we need to question everything they told us. I think they are lying to us and I am not sure why.”
It’s a shame that shows like the X-Files and Lie to Me are no longer on television. It wasn’t that they were fabulous television (although the X-Files came close), but when we would see fans of those shows show up for trial, we knew we had a clue about how drawn they were to conspiracy. A research study on fans of the show Lie to Me found those viewers were not really better at lie detection (although they thought they were!) but instead, simply more suspicious of everyone. Which, we think, made them more likely to fill in the blanks in a case narrative with their own “truth”.
Over the years, we’ve written a lot about conspiracy theories and conspiracists on the mock jury. They are certainly odd. And pretty entertaining when they fall in favor of your case. But, they can also bring a vivid imagination to your case narrative. That imagination causes both consternation and hilarity in the observation room but also highlights holes in your case narrative that you can fill prior to trial. As we’ve said before, filling those holes won’t necessarily stop the conspiracy theorist from re-digging them and leaping in with both feet, but it will give other jurors in the deliberation room ammunition with which to refute their (conspiracy-based) assumptions.
For the fourth year in a row we have been honored with recognition from the ABA via inclusion in their 2013 list of the Top 100 legal blogs in the country. We work hard to blog consistently even when inundated with work and would appreciate your vote for us at the Blawg 100 site under the LITIGATION category. You will have to register your email just so you can’t vote 47 times. There are many worthwhile law blogs on this list so take some time to peruse. Thanks! Doug and Rita