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Jury Selection: Simple Rule 16: The Herd Rule

The last rule for right now (it is an evolving list). . . .

I’ve talked about how the jury panel is a group and the jury is a group. Why? Because people like to be in groups. Most people will, given a choice between being in a big group and being in a small group, choose the big group. Another evolutionary relic? Safety in numbers? I think probably so. If I stay with the bigger group, we’ll be safer from predators.

So Simple Rule 16: The Herd Rule:

Remember that you are dealing with herd animals.

I’ve given examples of questions for the jury panel in other simple rules:

“Do any of you. . . ” versus “How many of you . . .”

The second question presumes that there are some people who . . ., and is therefore more likely to get responses than the first question, which doesn’t.

If you want to find as many people as possible who share some opinion that won’t be helpful in your jurors, or if you want the jurors to commit to a basic and uncontroversial principle, ask the question the second way: “How many of you agree with Mr. Jones that Fred is probably guilty?”

If, on the other hand, you want the people who share Mr. Jones’s opinion to keep their mouths shut about it, ask the question the first way: “Do any of you (or does anyone) agree with Mr. Jones that the government should be held to a higher standard than beyond a reasonable doubt?”

Herd animals don’t want to be cut out from the herd; they want to blend in. The jury panel is a group, and the group is a herd. When you are picking a jury, remember that.


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