A recent Georgia Supreme Court case on jury selection provides a framework for determining what a case’s subject matter is. There is a fine line between asking juror to prejudge the facts and figuring out if jurors cannot be fair. A few words about the problem in the case first. Full disclosure, I was amicus counsel on this case.

Defendant Ellington was on trial for his life in an indictment alleging that he had murdered three people. Though not mentioned in the indictment, two of the three victims were young children. Mr. Ellington was not charged with any offenses, such as cruelty to children, that would have otherwise revealed age. The defense wanted to discover which jurors would be unable to consider a life sentence for a man convicted of killing a child victim. The State argued that, since age was not disclosed in the indictment, this case was not “about” children. And, since the victims’ age would be developed as the facts were presented, it was not proper to ask the jury to pre-judge the facts. On the one hand, it is entirely proper to find out if jurors could not consider the facts and apply them to the law. On the other, it is not proper to pose hypothetical facts to jurors and ask them how they would decide the case based upon those facts.

The Court acknowledged that children are different. In federal death penalty cases, the youthfulness of a victim is an aggravating factor. And it is a factor in at least thirteen states. Our basic instinct is to protect children. That instinct is codified in law and in the rules of evidence. Within a minute of the beginning of the State’s opening statements, the State made age a theme. And it was a theme in closing as well.

The holding and the broader lesson.

The holding is arguably narrow. But the lesson to take from the reasoning is broad. At the very least the holding is that, in a death penalty case where children are the victim, it is appropriate to ask jurors whether they could consider the possibility of a life verdict. In the broader sense, the reasoning is that cases are about more than what is plead in an indictment.

Whenever there are facts in your case that would inherently bias jurors, it is important to ask about it in voir dire.

• In DUI or drug cases, it is important to ask jurors about experiences with alcohol and drugs. It is a rare family that hasn’t been touched by addiction. And it is reasonable to expect that some jurors aren’t qualified to sit in those kind of cases.
• The age of the defendant may bias some jurors.
• There may be certain types of crime where jurors cannot possibly be fair. A person who owns a retail store may not be an appropriate juror in a shoplifting case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.