The Trial Before the Trial: Voir Dire and the Presumption of Innocence

The “presumption of innocence,” or, “innocent until proven guilty” as keyboard warriors commonly call it, is a basic tenet of our legal system. But what does this standard actually mean? The basic principle is so well known that Americans often use the phrase when discussing things that happen outside the confines of a criminal courtroom—from steroid use to hit TV show plot twists. The presumption is sacrosanct within the American criminal justice system. But, how vigorously is this fundamental legal principle protected during jury selection? 

In 2010, law professor Jeffrey Kahn documented his own experience sitting in a jury pool for voir dire. His observations paint a disturbing picture. Professor Kahn noted that at the outset of voir dire the prosecutor used the phrase “violent sexual predator” so frequently that he “feared it would lodge in [his] brain like an unwanted pop song.” Presumably, the prosecutor was attempting to attach this contemptible label to the accused in the minds of the jurors. Strategically, this could be effective in selecting the most favorable jurors. According to the “Reptilian Theory”:

[w]hen humans feel threatened, the reptilian brain takes charge and controls human conduct . . . if a lawyer can make a juror feel threatened, the lawyer appeals to the juror's primitive reptilian brain and virtually assures a victory. Thus, a lawyer's argument should intensify the juror's fear that his or her physical survival is at stake as well as that of the juror's family and community.

Connecting the accused to a “violent sexual predator” could, theoretically, scare jurors into “punishing” the accused for fear of their community’s safety.

            The efficacy of this approach seems questionable. The Reptilian Theory seems to rely on simplistic notions of the human capacity for complex thought. But, lawyers' willingness to manipulate jurors and potentially interfere with such a basic tenet of the American legal system is perhaps more troubling than the potential efficacy of the Reptilian strategy. Supposing this strategy is effective, it would almost invariably interfere with a juror’s ability to maintain a presumption of innocence. This approach compounds jurors’ confusion over how to apply this presumption. Furthermore, the Reptilian Theory may run contrary to what the criminal justice system promises to achieve—an impartial jury that grants the accused the presumption of innocence.

Indeed, “[t]he principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Thus, some scholars have suggested that “specific inquiry into prospective jurors' willingness and ability to apply the presumption of innocence” should be required in all criminal jury trials. On this issue the circuits are split. The Sixth Circuit has held that the “failure to allow voir dire on presumption of innocence upon request is erroneous.” The Supreme Court is yet to speak on the issue. 

Jury selection in today’s day and age is difficult enough—imagine the experience of jury selection for the defense in the trial of “El Chapo,” the “world's most powerful drug trafficker.” Jurors have the ability to access more information online than they could hope to glean from voir dire, and the presumption of innocence is perhaps in a more precarious position than ever before.

Devan Dal Col 

ddalcol@smu.edu