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Jury Selection And The Art Of Voir Dire
Voir dire means to speak the truth. We use the term to describe two legal processes, the process by which prospective jurors are questioned to select a jury and the process by which certain witnesses are questioned to determine if they are qualified to testify as experts and express opinions. This post will be about jury selection, a subject near and dear to my heart.
Which do you think is most important to win a jury trial?
(a) Jury selection,
(b) Opening statement,
(c) Direct examination,
(d) Cross examination, or
(e) Closing argument?
The correct answer is: (a) jury selection.
Because, if you do not select the right jury, you will have little chance to win, no matter how strong your case and how proficient you are with the other four skills.
How do you select a jury?
Let us begin with a clarification. Jury selection is a misnomer because each side actually selects the jurors whom they do not want on the jury.
How do you select the jurors whom you do not want on your case?
Hopefully, the panel of prospective jurors has filled out a juror questionnaire that you have had an opportunity to review before you begin to question them. I always prepared questionnaires tailored to the issues in my case. For example, if there had been extensive negative pretrial publicity, which was pretty common given the types of cases that I handled, I would include a short description of the case in the questionnaire and ask the prospective juror to write down what they had read or heard about the case and whether they had formed an opinion about my client’s guilt or innocence. Another example involves rape cases where you want to know whether the prospective juror, or a family member, or close friend has ever been raped.
You question prospective jurors individually using their answers on the questionnaire as a guide and, depending on their answers, you pass or challenge them for cause, or later use a peremptory challenge to get rid of them.
Challenges for cause are unlimited, but you must reasonably articulate a reason why you believe a prospective juror cannot be fair, impartial, and follow the jury instructions that are the law of the case. If your opponent objects to your challenge for cause, your challenge will turn into mini trial with you attempting to discredit the prospective juror whom you have challenged and your opponent attempting to rehabilitate him or her. Ultimately, the judge will decide whether to grant or to deny the challenge.
Warning: Keep in mind that, if you lose the challenge, you are going to have to use one of your limited number of peremptory challenges to get rid of the prospective juror whom you have just insulted in front of all the rest of the panel of prospective jurors by challenging his ability to be fair, impartial, and follow the court’s instructions. If you think you are going to lose the challenge for cause and possibly irritate the other members of the panel in the process, you should seriously consider passing the prospective juror for cause and later use one of your peremptory challenges to get rid of him.
Peremptory challenges are exercised silently by opposing counsel passing a sheet of paper back and forth and striking a prospective juror each time. Finally, delay striking someone whom you think your opponent may strike. If she does, you will have saved a peremptory that could mean the difference between winning or losing the case.
You do not have to explain why you challenged a prospective juror, unless the challenge appears to be systematically based exclusively on race, sex, or religious affiliation. If that appears to be the case and your selection is challenged, you will have to satisfy the judge that you had another reason.
In misdemeanor cases, each side gets 3 peremptory challenges. In felony cases, each side gets 6 peremptory challenges. In death penalty cases, each side gets 24 peremptory challenges.
I used to tell my clients to think of our peremptory challenges as bullets in a gun. We have to use them strategically so that we do not need one after we run out.
So, here is the strategy in a nutshell.
(1) Go through the questionnaire and identify the prospective jurors who appear to have strong personalities who, by reason of education, experience, or occupation appear to be capable of leading the jury. You must get rid of any of them who appear biased in favor your opponent or prejudiced against you or your client. No matter how good you are, you will lose, if you fail to do this.
(2) Identify any other prospective jurors who for any reason appear to be, or might be biased in favor of your opponent or prejudiced against you or your client. You can probably still win your case, if you leave them on the jury, so long as they do not influence other jurors to vote for your opponent’s case. Prioritize getting rid of them according to how likely you believe they will influence others.
(2) Focus on both categories of prospective jurors during voir dire and, if you confirm your initial opinion, try to set them up for a challenge for cause.
(3) Pass or challenge the prospective juror for cause. Occasionally, you will desperately want to get rid of a prospective juror who stubbornly refuses to admit they are prejudiced against you or your client, even though the prejudice is apparent. You will need to use a peremptory challenge to get rid of them, if that happens.
(4) Exercise peremptory challenges after a sufficient number of prospective jurors has been passed for cause, such that there will be enough of them to form a jury, plus alternates, if both sides exercise all of their peremptory challenges.
Selecting a jury is an art form that is not taught in law schools. Very few judges and lawyers appreciate how important it is and only a few of them know how to do it well. I worked very hard on developing this skill and I believe that is why I won approximately 80-90% of my trials.
You have to know your case thoroughly. You have to identify all of the potentially outcome-determinative factual issues before jury selection. Most of them will relate to witness credibility. You do not want jurors who will not believe you and your witnesses. If you are not planning on calling any witnesses — as might happen in a criminal case, if your client decides not to testify — you want jurors who will follow the jury instructions and not hold your client’s silence against him.
Here is an example regarding the presumption of innocence.
Defense counsel: Good morning, Mr. Jones.
Q: I am going to ask you a hypothetical question, sir. Let us suppose that you have to decide whether my client, Sandra Wade, is guilty or not guilty, and you have to make that decision right now, before you have heard any evidence. What would your decision be?
A: Uhm, I don’t know. I can’t make a decision without any evidence.
Q: I understand. I suppose like most folks, you want to be fair and hear both sides before you make a decision, right?
A: Yes, I want to be fair.
Q: Fair to both sides?
A: Yes, of course.
Q: Do you believe it is important to follow the court’s instructions?
Q: Even if you disagree with them?
A: Yes, the judge told us they are the law of the case and I intend to follow the law.
Q: Even if you disagree with them?
Q: Since this is a criminal case, the judge has instructed you that my client, Sandra Wade, is presumed innocent, right?
Q: What is your verdict right now, before you hear any evidence?
A: Uhm, Okay. I see what you mean. I guess I’d have to vote not guilty.
Q: Sounds like you aren’t sure. Are you certain you could do that? Because, if you can’t, you probably should not be a juror in this case. Do you understand why I say that?
A: Yes, you’re representing Ms. Wade and protecting her legal rights.
Q: Right. This isn’t personal. I just want to know if you can honestly — and I emphasize the word ‘honestly’ — presume Sandra Wade is innocent, even though she is charged with killing her husband while he was asleep. Lots of folks for one reason or another might not be able to do that and that doesn’t mean they are a bad person. It just means they shouldn’t be a juror in this case. How about you, sir?
Can you look her in the eye and honestly tell her that you presume she is innocent?
Thank you, sir. Your Honor, I pass Mr. Cameron for cause.
Warning: Eye contact and body language are vitally important indicators that often are more important than the answers people give. For example, if Mr. Cameron had suddenly shifted his body position or been unable to look at my client when I asked him to look her in the eye, I would have known that I had to get rid of him, unless I was satisfied that he would not lead the jury.
INSIDER TIP: When in doubt while questioning prospective jurors during voir dire, ask why they said or did something. This gets them talking and you will find out a lot more about them, if you are listening, rather than trying to impress everyone with how smart and well spoken you are.