Saturday Art: Jury Selection And The Art Of Voir Dire

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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.

Why?

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?

A: Yes.

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?

A: Yes.

Q: Since this is a criminal case, the judge has instructed you that my client, Sandra Wade, is presumed innocent, right?

A: 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?

A: Yes.

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.

Namaste.

3 Responses to Saturday Art: Jury Selection And The Art Of Voir Dire

  1. Ken Robbins says:

    I get jury duty notices like clockwork about once a year. When I was younger I got them every 90 days, that went on for a couple of years.

    I think I’ve seen more jury selections than most laymen my age.

    I’m a reasonably smart fellow; I have an engineering degree and I think like a scientist. I use the scientific method on the job. Even so I get on juries every now and then.

    That being said, most of the lawyers in the trials I’ve seen don’t seem to have a system like yours.

    I’ve only had to fill out a questionnaire once, that was for a special circumstance death penalty case where the defendant was accused of killing a small child. At the time, here in California jurors in death penalty cases were interviewed in closed court. The defense attorney used his questions to try out defense strategies.

    When the defense counsel asked me a question, often the prosecutor would interject with a comment like “That’s a stupid question” or the more familiar “Objection! 352!”. The judge didn’t have any comment, he just let this freak show continue.

    In another trial, I was asked “Do you believe it might not be murder if the victim died due to his religious beliefs?” I did the dumb thing and blurted out what popped into my head. “No, I don’t think the First Amendment covers human sacrifice”. Didn’t get on that jury!

    Some jury selection whoppers: In a civil case about a car collision, a auto body repair man got on the jury. He was very helpful and showed how the damage to the cars was caused when the plaintiff rammed the defendant. He was one of the first jurors selected so the plaintiff’s attorney hadn’t run out of challenges.

    I was a juror on a trial, a gang member was accused of shooting and killing another gang member. Nobody asked if a) they were a gang member or b) knew any one who had been murdered. My brother survived but his two friends were killed by a bad guy once, I guess nobody was interested in that information. A former gang member was on the jury panel and explained during deliberations how not all gang encounters are confrontational. This trial’s star witness was the detective that investigated the killing, his testimony was pretty poor ( I mean, he contradicted himself a lot). Mister Leatherman, I just know you would have torn the case to shreds in cross examination.

    The dumbest jury selection episode? My very first trial, I had given the answers to the questions on the board ( age, occupation, city of residence, etc. ) and the first thing the prosecutor did was insult me. I guess he thought that would give him an edge. He called me “retarded”. In open court.

    Oh, and the fellow that tried to kill my brother? I attended the trial. The defense attorney opened his closing argument with, “When my client committed the crimes for which he has been accused…”

    The guy’s dad put a second mortgage on the house to pay for THIS???

    I’m enjoying your blog, it is very informative.

    Somehow I get the feeling when we get to the part on closing arguments you aren’t going to suggest telling the jury the defendant is guilty…

    • masonblue says:

      I handled a lot of heavy duty felony cases and almost always submitted a proposed juror questionnaire that covered basic issues relevant to the case. What you referred to as questioning during a closed hearing in California, we called individual voir dire in Washington. We did it that way in all death penalty cases. I believe it’s a good idea because it avoids the potential for a mistrial if a prospective juror, for example, blurts out an answer to a question about exposure to pretrial publicity that might poison the rest of the panel if they were present. Of course, it also helps to avoid embarrassment when prospective jurors are questioned about personal matters that may be relevant to issues in the case. For example, whether a prospective juror had been raped or molested as a child might affect their ability to view the evidence objectively in a case in which the defendant was charged with a similar type of offense.

      I’m sorry to report that your negative experiences with lawyers during jury selection are not unusual. Most lawyers are clueless about jury selection and use it as an opportunity to lecture, show-off, and try their case without listening to the answers, never realizing that they are alienating every member of the jury pool.

      Arrogant and ignorant is a deadly combination and there is no shortage of lawyers who display those traits multiple times every day.

      Thanks for stopping by and commenting.

  2. ed nelson says:

    Jeesus H. Christoferr…. so how is is it “OK” to go and gerrimander or make changes in the gdmd field of the “jurors”??

    OR… when the jurors are being vetted and that, it isn’t a trial by just peers, not anymore, it is into some other place… so …

    The problem is to me… at this moment… that: too many stupid cattle, and too many stupid/… no not so stupid, but totally rotten/ deamonic… (H.G.Well’s… “Morlocks”) cannibalistic… untermenschen…, forgive me for trowing terms about…

    Not enough of what was “The Rule of Law”, seems to remain as that falback default… that we would all so much adhere to…. so you an Ace Lawyer, are maybe in the same boat as a bunch of us… Obsolete.

    I could probably load a freighter from stem to stern, we knew how to put all different cargoes in the gadammed ship, heavy stuff in the bottom, light stuff to “top off”, and how to get all that crap on a boat, but now, forget that, they put a little box of about maybe 200 lbs in a container and it goes. Zoom, trucks haul containers from A to Z with maybe a full load or not, efficiency is not even a worry, they killed us.

    but that was in the old way, now it is not needed.

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