The right to trial by jury - the spinal cord of democracy,
the palladium of free government, and the only guarantee to appear
"The guarantees of jury trial in the Federal and State Constitutions reflect a profound
judgment about the way in which law should be enforced and justice administered.
A right to jury trial is granted to criminal defendants in order to prevent oppression
by the Government. Those who wrote our constitutions knew from history and
experience that it was necessary to protect against unfounded criminal charges
brought to eliminate enemies and against judges too responsive to the voice
of higher authority. The framers of the constitutions strove to create an
independent judiciary, but insisted upon further protection against
arbitrary action. Providing an accused with the right to be tried by a jury
of his peers gave him an inestimable safeguard against the corrupt or
overzealous prosecutor and against the compliant, biased, or eccentric judge."
United States Supreme Court Justice Byron White
The trial lawyer - a courtroom panhandler who
depends on the kindness of strangers, i.e., jurors, for support.
The prosecutor wants a jury like a wheel with twelve spokes
connected by a common rim. The defender desires a jury
of spokes unconnected by a common rim.
The first is a wheel that will roll into a unanimous verdict.
The second is not a wheel. It's just a collection of spokes.
It won't move.
Take it as a given that everyone outside of playpens
and judge's chambers has a prejudiced point of view.
You can't remove prejudice, but you may be able to spot it in voir dire.
"I consider trial by jury as the only anchor ever yet imagined by man,
by which a government can be held to the principles of its constitution."
We don't see things as they are.
We see them as we are.
In no other body of such social significance do we settle for such haphazard
fleeting membership with no requirement of experience.
[For more in-depth information and suggestions about the process of excluding and selecting people (1) as jurors during voir dire, read the CCJA monograph, Jury Deselection in Criminal Cases.] The only time your jurors can give you their voices is during the jury voir dire (1), (2), (3). It's a vital stage of the process. Let's discuss the legitimate purposes of the jury selection and deselection process, otherwise known as jury voir dire ("voir" and "dire" being, respectively, French verbs for "to see" and "to say," which taken together in the Norman French meant "to speak the truth, " though in France today if you wished to say "to tell the truth" you would say "a vrai dire.") The focus of our discussion will be on states, like Texas, where the lawyers are allowed to conduct the questioning of the prospective jurors, or, at least, participate significantly in the vetting process. What I have to say on this web page will not necessarily apply in some jurisdictions, e.g., Arizona, DC, Delaware, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, South Carolina, and Utah, where there is little or no lawyer conducted voir dire questioning (1 - a judge, formerly a prosecutor, disparages lawyer questioning during voir dire), (2 - a defender doesn't like judge conducted voir dire), and in federal court where, under Rule 24(a) of the Federal Rules of Criminal Procedure, the trial judge can, and usually does, conduct the jury voir dire, i.e., "(1)The court may examine prospective jurors or may permit the attorneys for the parties to do so." At the trial judge's discretion, the lawyers (1) in some federal prosecutions are also allowed to ask a few questions, i.e., "If the court examines the jurors, it must permit the attorneys for the parties to: (A) ask further questions that the court considers proper;or (B) submit further questions that the court may ask if it considers them proper." (1)(2) See also Gonzales v. United States, 553 U.S. 242 (2008). In a typical felony case, you'll be lucky to get 10 or 20 minutes of personal interaction with the jurors in federal court. There are exceptions, e.g., a high publicity death penalty case such as the Terry Nichols Oklahoma City Bombing (1 - featuring world class defender Michael Tigar) and the Unabomber case (1 - featuring defender Judy Clarke, a lawyer who combines the dual traits of being an exceptional advocate and a nice person) involved individual voir dire with both sides being allowed to ask questions, after the judge completed his inquiries, to supplement the judge's examination of the venire or, in the alternative, the lawyers will be allowed to submit questions (1 - note the federal prosecutor's efforts to limit defense questions), (2 - a selection of defense requests) to the judge, which the judge may or may not ask as an addendum to the judge's usual colloquy and spiel. Thus, for most practical purposes, traditional attorney voir dire is moribund in United States District Courts. Note also that one of the Supremes, Justice Breyer, is openly disenchanted with the peremptory challenge system. Ex-Justice Souter felt similarly. See Breyer's concurring opinion in Rice v. Collins, 546 U.S. 333 (2006) and Souter's opinion in Miller-El v. Dretke, 544 U.S. 231 (2005). [Note: A 2007 84- page study of jury practices informs us that voir dire is split rather evenly between the court and counsel in these states: California, Colorado, Hawaii, Idaho, Illinois, Kentucky, Michigan, Minnesota, Mississippi, New Mexico, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Virginia, Wisconsin, West Virginia. In these states voir dire is conducted primarily by counsel: Alaska, Alabama, Arkansas, Connecticut, Florida, Georgia, Iowa, Kansas, Louisiana, Missouri, Montana, North Carolina, North Dakota, Nebraska, Oregon, Rhode Island, South Dakota, Tennessee, Texas (my home state), Vermont, Washington, Wyoming.] The number of peremptory challenges differs from one jurisdiction to another; however, to my knowledge, no jurisdiction has totally done away with peremptory challenges. There is no constitutional right to peremptories. See Rivera v. Illinois, 556 U.S. 148 (2009) holding that just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge. In federal court and the ten jurisdictions mentioned, your non-testimonial quest for the hearts and minds of jurors is more likely to begin during opening statement. A Prediction: In the next score of years, as the lawyer's role in voir dire in almost every jurisdiction is supplanted by the trial judge, the advocate's ability to make an effective opening statement will become a much more vital and important trial skill than conducting a voir dire examination during jury selection. For an insight into the process for summoning jurors in federal court, take a look at the federal Jury Selection and Service Act.
THE JURY SYSTEM IN UNIQUE
The American jury system (1) is unique. John Adams described it as "the heart and lungs of liberty." Our legal process entrusts the most difficult disputes to a group of people who are strangers to one another and strangers to the parties to the lawsuit. We submit crucial questions involving property, liberty and life itself to a random slice of the community's population. We call that group a "jury."
We Americans seem enamored with the idea of right to trial by jury. We are fond of saying, "It's the best system in the world." It doesn't bother us that the jurors, through no fault of their own, are cast in a role akin to "child emperors," enjoying much more power than their life experiences have trained them to exercise. The anomaly is that when called to serve as a citizen juror, many of us do what we can to duck out of the job.
TO LEARN ABOUT HOW TO SELECT/DESELECT A JURY, WATCH IT BEING DONE
Techniques are mastered, in part, through imitation. "Monkey-see, monkey-do" learning requires observation and practice. You certainly can't learn how to conduct an effective jury voir dire simply by reading about it or by attending a CLE course on "How to Pick a Jury" or "The Ultimate Voir Dire." But talking about jury "selection" (trying to wind up with favorably inclined people) and "deselection" (getting rid of those who are leaning against you from the start) and watching it being done are good starting points. Whether you are a 3L law student or a licensed practitioner, find time to slip into courtrooms and observe experienced litigators questioning jurors. I've often thought that it would be wonderful if TruTV were able to broadcast the jury selection process. For privacy reasons, with the exception of Florida where faces of prospective jurors are not shown, this is the one area of the trial that is almost never televised. See the video clips from the Casey Anthony case in the sidebar. Those who practice in metropolitan areas or attend urban law schools will always have the opportunity to watch voir dire questioning being done by veteran trial lawyers. Go and watch. You can learn a lot about how jury voir dire works. Don't hesitate to adopt the helpful techniques of talented colleagues.
THREE SECRETS THAT WILL HELP YOU DO A BETTER JOB IN VOIR DIRE
There are three quotations that should come to mind when you to understand your purposes in the jury voir dire process.
(1) The first quote I'd like for you to remember is:
Seek first to understand, then to be understood.
First and most important, you are trying to understand who the prospective jurors are as individuals. This is a difficult task because nothing is more uncertain or unpredictable than the feelings of a group of total strangers. Yet, you must make the effort. Your secondary objective is to have the jurors understand you and your theory of the case. Your effectiveness as a trial advocate is not so much about what you do, but what the jurors do because of the power of your influence in the courtroom. It's a two part equation - understanding and being understood. To understand what makes people tick requires intuition and knowledge of human nature. Some of us are more intuitive than others. Some of us study human behavior more than others. The bottom line is - if you are going to be a good jury-picker, become a student of human nature and group behavior. For example, human nature moves many jurors to judge others more harshly than they would judge themselves. Don't we love justice in the affairs of others and mercy in our own? Do we search others for their vices and ourselves for virtues? Do we humans have a natural inclination to observe and reprove the faults of others? Many of us are unwilling to admit that our personal plight and/or foibles are partially our own fault, but, in judging others, we tend to place the entire fault on their shoulders. In other words, some prospective jurors view their own shortcomings as being caused by external reasons, i.e., the hard cruel world. Yet, the same jurors who blame others for their problems do the reverse when they judge others. i.e., they tend to attribute externally caused shortcomings to internal weakness. One way of dealing with such natural human tendencies is to make them known. For example, in a case involving the defense of mistake of fact, a defender might ask the prospective jurors whether they acknowledge the tendency among some people to "judge others more harshly than they judge themselves."
(2) The next quote that bears some thought is:
You can't sell what you wouldn't buy.
You can only lead your jurors where you yourself are prepared to go. You must learn how to believe in your case long before voir dire begins. Your confidence in the product you are selling will find its way into your courtroom presentation.
(3) The final quote is:
While the lawyers are picking the jury,
the jurors are picking a lawyer.
From the minute they lay eyes on you, the jurors are grading your papers, making assessments of your candor, integrity, and competence. In the courtroom, think of yourself as a performer (not an actor) who is always on stage. How do you want the jury to perceive you? Act accordingly from the get-go and in a consistent manner.
UNDERSTANDING YOUR PROSPECTIVE JURORS - GET THEM TALKING - Tell us about yourself.
When you fist face your jury panel, it's like being presented with a sack full of knots that you will have to untie. You have a brief period to examine each knot in the bag, and then you get to discard a set number of them. Understanding jurors is like understanding knots. The goal if to keep the ones you can untie and get rid of the one's you can't. But exactly how do you go about understanding a group of thirty or forty strangers in a brief period? First, you've got to get them to talk (1), (2 - analogizing the process with a town meeting), (3) - not an easy thing to do in a society where, on the prospective jurors lists of things they look forward to, speaking in public is right above ringworm. Yet, you've got to get their lips moving with conversation. If you want to find out how a person thinks, you have got to let that person do the talking. Getting a conversation going requires you to ask open-ended questions that invite narrative responses, the kind of questions you ask on direct when you let your witness tell his own story. In jury voir dire, unlike direct examination, you don't know what answers the juror will give to your open-ended questions. You'll prompt an answer that reveals the prospective juror's thinking if you ask those "what, why, how, when, where, and who" questions. You won't always what you want to hear, but it's what you need to know.
Courts in general, and the voir dire process in particular, are intimidating to most jurors. It's natural for most of us not to want to be made to talk about ourselves in front of strangers. Some of us just don't feel comfortable opening up to people (other than hair dressers) we don't know well. In jury voir dire you may be facing a group that, given the choice, would rather be talked to than be required to talk. You will have to figure out how you want to deal with the natural fear and resentment that many venirepersons have of being forced to speak in public. Of course, once you coax the prospective jurors to talk, you must be listening to their answers and watching them. It's been said that great trial lawyers listen to jurors with their eyes. I suggest to you that the art of jury picking is more in the listening and observing than in the talking. A good rule of thumb might be to let the prospective jurors talk 75% of the time, leaving you with the remaining 25%. [Aside - re your relationship with jurors: Here's another good rule of thumb: To appear too clever is dumb.]
Every person is an individual, but there is a lot to be learned just by understanding the general demographic makeup of our population. What do we mean by cross-section of the population.? If you don't know much about the population of this country, learn. The general information is out there for the reading (1), (2), (3). You can use the Internet to research people and the zip codes in which they live.(1-SNS) (2). Here's an example, the demographics of the OJ jury.
DESELECTION - IDENTIFY THE ONES WHO ARE LEANING AGAINST YOU
Your manner should be geared to getting the prospective jurors to relax, provide candid answers, and be open to communication. Jurors exercise an unconscious choice in being influenced. Your approach to the voir dire is to unfreeze their real attitudes and opinions so that you can gain an insight. If you can do this, you will be better able to decide the ones who are most likely not to look at things your way. Yes I mean what I just said. Your first task is to identify the folks who are most likely to vote your opponent's way. These are the people you want to get rid of. [The exception is the juror who can't lead and won't follow. This is a "wildcard hanger" and one the defense typically wants.] Most of us think of voir dire as the jury selection process. It is in part a selection process, but more importantly it is a "deselection" process. You are looking for "them that's agin' you."
Attitudes and predispositions drive behavior. All other things being equal, the tree usually falls the way it leans. And you are not going to have sufficient time or opportunity to change the basic attitudes and predispositions your prospective jurors bring to the courtroom. So in voir dire you are trying to identify the folks who belief system predisposes them to resist your theory of the case. These are the ones you want to strike.
What about the ones who seem amenable to your case. Make your opponent find out, on her own, those that are leaning your way from the start. If you display, by your questions, the people who are most likely to see things your way, your opponent will strike them. Since you are trying to identify the ones who honestly are not in your corner, always ask the questions that will identify those you want to banish or purge from the panel before you start asking questions that might embarrass or entice the prospective juror into hiding or concealing the prejudice or bias that you want to reveal.
GETTING THE PROSPECTIVE JURORS TO UNDERSTAND YOU - TALKING TO THEM
After you get the prospective jurors talking, if you want them to understand you, you've got to talk to them. You are trying to provide information to the people who will wind up on your jury. I recall hearing a colleague say: "During trial, jurors will welcome that which they are ready and willing to cope with. The rest they either ignore or pronounce to be wrong or improbable." If the prospective juror understands your legal position, you can condition the juror to be receptive to your theory of the case. Get rid of those that don't grasp it. A good way to weave your theory of the case into the process is to discuss "Why we are here." Put your theory in front of the panel, and let them talk about it. Go easy on trying to educate the jurors by lecturing them. We each have a face that we put forward to the world. How you present yourself is a personal choice but I like this as a good choice for relating to your jury: Aim and shoot for a manner that's semi-formal and deferential and at the same time cordial, while reflecting an air of dignified authority.
Of all the things you wear, your expression is most important. A pleasant expression adds face
value to your case. For most of us, a smile at the appropriate time,
is the least expensive way of improving the looks of our face.
The jurors start grading your papers from the moment they set eyes upon you and figure out who you are. You want to look good! Use voir dire to begin earning your juror's respect and trust, so they will credit and believe what you say later on in the case. It's even better if they like you. Don't visualize voir dire as a trick. To be convincing in what you do and say, rapport with your jurors is essential. And voir dire is the place to start developing it. Be a model or what you want the jurors to be in their deliberations, e.g., listen to others, respect other people's opinions, discuss, let everyone talk, etc. You must be honest to get honest information. The influence you will have on the jurors is measured by the opinion the jurors have of your integrity.
Of course, looking good does not mean that you force your personality upon the prospective jurors. You can look good by surrendering some power. Consider old Ben Franklin's advice in his essay "On Conversation" about how to win friends and influence people: "Would you win the hearts of others, you must not seem to vie with them, but to admire them. Give them every opportunity of displaying their own qualifications, and when you have indulged their vanity, they will praise you in turn and prefer you above others. Such is the vanity of mankind that minding what others say is a much surer way of pleasing them than talking well ourselves."
The old bromide says that "while the lawyers are picking a jury, the jurors are picking a lawyer." There's a stalactite of truth to that old saying. The prospective jurors are sizing you up at the same time you are deciding who of them you will strike. Part of your presence is the way you look, e.g., your dress, your face, your grooming, your smile. Part of it is the way you sound, e.g., your voice, your laugh, your word choices. Other parts of your presence are your walk, your stance, your posture, and the air of confidence, or lack of it, that you exude. What do you want the prospective jurors to feel when they watch you and listen to you? Work on that image. Here's a rule of thumb: The shorter the trial, the more influence your superficial look will have on your persuasive impact with the jury. The saying, "You are what you wear" has more meaning in a short half-day misdemeanor trial than it does in a three week marathon. In the latter situation the jurors have much more time to evaluate you as a whole person; accordingly, the way you dress will have less influence.
I once heard a defense lawyer describe a jury as "a group of people persuaded by a lawyer they don't know to acquit a defendant they wouldn't trust to park their cars." This is not a winning dynamic. You can change it only by creating a courtroom image of trustworthiness and credibility for yourself and your client.
Voir dire is the place for first verbal impressions. For this reason, your opening voir dire is crucial. Obviously you want to be well dressed. You want to be gracious, courteous, polite, and well mannered. Beyond that, you have to sell yourself in very subtle ways. In the eyes of the prospective juror, you can't afford to appear arrogant, cynical, cold-blooded, tricky, slippery, cunning, etc. How do you sell yourself with verbal impressions? One way is to be helpful without fawning or currying favor. Ingratiate yourself to the prospective jurors by being solicitous of their comfort. Think about what it is that bugs jurors. My own experiences as a prospective juror suggest the following: First, they get treated like stockyard cattle being herded from one holding pen to another. Second, they aren't told the full story of what is happening around them. Third, they are captive strangers in a foreign atmosphere. So, how do you play the juror's predicament to your advantage? Use your knowledge of the court's procedure to make them more comfortable in the confinement of the court and their jury rooms. Without fawning or playing the toady, do something to assuage the jurors' anxiety and elevate yourself to the role of host. Give them an insider's view. For example, tell them how many strikes each side has. Introduce the court personnel. Give them useful information that will make their lives as jurors more comfortable. For example, tell the jurors how the court works insofar as breaks, phone access, eating, smoking, parking, etc. Why? Because, if you assuage their nerves and make them feel a bit more comfortable in their confinement, they will like you.
Do what you can to make the jurors feel important. Elevate their sense of responsibility to their "high office as judges without robes." Teach them a bit about the important rules of court, e.g., the burden of proof, the presumption of innocence, and the meaning of reasonable doubt. You have to turn the lights on for them. Most people called as jurors have not had experience in enforcing the law or protecting someone's constitutional liberties and freedoms. [Defenders, don't talk about your client's "rights." It's a popular idea that accused criminals have too many "rights." Instead, call them "fundamental principles of liberty."] Do a little teaching about fundamental principles of liberty. Boost their sense of civic pride.
GETTING READY FOR JURY SELECTION
Stay abreast of communication theory. You are a professional persuader. Your job as an advocate is to help a group of people believe in the possibility or probability that something did or didn't happen in a particular way. Part of your job is to know what persuades people, what influences their belief system, and what motivates them to act on formed belief. How do you develop understanding? How do you sort out the different strokes it takes for different folks? Look in yourself and your experiences. Look to your relationships with fellow beings and the earth. Be a student of human nature. Learn how people think by associating with people. Be sociable. Experience life. Have friends. Make a conscious effort to learn as much as you can about people and what moves them. For example, do men and women differ in their communication style, approaches to problem solving, and ways of relating to others? Are men still shaped by cultural expectations to be in control, to be strong, and to be independent? Faced with the same circumstances, will a woman be more comfortable expressing sadness, where a man may be more comfortable expressing anger? I don't pretend to have answers to such questions, but the point is that trial lawyers have to think about how different people react to facts? When you plan ahead, you'll be trying to figure out how jurors will respond and react. What are the moral/ethical issues? What motivates action? There is a lot of useful information about communication theory. Most of the literature comes from behavioral scientists who study what makes people tick. There is also some helpful literature in the field of advertising. Go to your local library some Saturday, and read this stuff. Throughout your legal life, always ask, "What can I do, as a paid persuader of jurors, to achieve better understanding and charisma?"
Know the way the court handles voir dire. For example, how much of a pep talk does the trial judge give the panel of prospective jurors; what does s/he say? Is the judge receptive to pre-advising the jury concerning basics such as the burden of proof, the presumption of innocence, circumstantial evidence, etc.? Is the judge receptive to jury questionnaires? Does the judge take challenges for cause at the end of the voir dire or during it? The method of exercising peremptory challenges or striking jurors peremptorily without having to supply a reason varies among the jurisdictions. There are two ways to handle peremptory strikes: (1) simultaneous strikes or (2) alternate strikes. In non-capital cases in my home state (Texas), we use simultaneous written strikes from a list of the venirepersons. Simultaneous striking always entails the possibility of "double strikes," i.e., where each side strikes the same person. to get a jury of twelve. Other jurisdictions utilize the alternating strikes method where each side exercises its peremptory strikes on a back-and-forth basis, e.g., where the defense gets ten peremptories and the government six: the defense strikes 2, the government strikes 2, the defense strikes 2, the government strikes 2, the defense strikes 2, the government strikes 1, the defense strikes 2, the government strikes 1, the defense strikes 2. The law in some states provides that twelve person juries are selected in panels of four, e.g., I believe Illinois law provides, "Parties shall pass upon and accept the jury in panels of four, commencing with the state."
Prepare for juror notetaking if it is allowed. An increasing number of courts are allowing jurors to take notes, particularly in trials that last several days. Federal courts permit the practice. If your state has not established a policy, consider the merits of moving the court to permit notetaking. See Motion Practice. Customarily, courts impose limitations on how and when juror's may use their notes. Be ready with a limiting instruction if you are seeking leave to permit notetaking in a jurisdiction without established guidelines. Plan ahead for a possible Batson objection. [This discussion will not go deeply into detail regarding Batson procedures.] Be aware that neither side is allowed to exercise a peremptory challenge based on the race or gender of a prospective juror. The famous Batson v. Kentucky, 476 U.S. 79 (1986) case created a three-prong process for a trial court to use to determine if there is an Equal Protection violation of the U.S. Constitution. Briefly, it goes like this: First, the objecting party must make a prima facie showing to the trial court that one or more peremptory challenges exercised by opposing counsel is race or gender based. Second, when the prima facie proof requirement is satisfied by the objecting party, the burden shifts to the lawyer who exercised the questionable peremptory challenge to articulate a comprehensible race or gender neutral explanation (It doesn't have to be plausible or persuasive, so long as it is not inherently discriminatory.) for the strike(s) in question. Third, when an explanation is proffered, the trial court has the obligation of determining whether the objecting party has carried his burden of proving purposeful discrimination, i.e., determining whether the objecting party has proven racial or gender based motivation for the peremptory, including consideration of whether the race or gender neutral explanation of the party exercising the peremptory challenge negates purposeful discrimination. The objecting party has the burden of proving that the race or gender neutral explanation(s) of the party exercising the peremptory is unworthy of belief. The trial judge looks at the "genuineness" of the reason given for the peremptory, not its "reasonableness." See Purkett v. Elem, 514 U.S. 765 (1996) holding that a facially neutral peremptory challenge, even if it is "implausible or fantastic," can be a basis for a peremptory challenge; Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737 (2016) reaffirming Batson in a case where the prosecutor's professed race-neutral reasons for striking two blacks were not credited when the prosecutor's own file notations reflected a "concerted effort to keep black prospective jurors off the jury." On the Batson issue, you must act quickly when the ground appears. Why? Because in most jurisdictions, including Texas, you must make your race or gender based discrimination objection before the jury is sworn. Timewise, this means that there is a very brief period between the time when the jury for the case is selected and the time when those chosen as jurors are sworn in, e.g., when the jurors take their oath. You have to object during this time interval or waive the Batson objection. As a practice tip, I suggest that you alert the court on the record before the voir dire begins that you anticipate having the Batson objection and will need to be given a reasonable period of time to make the Batson objection after the names of the persons selected as jurors are called and before they are sworn.[This announcement that you "may have a Batson objection," made in the presence of opposing counsel, can have a chilling affect on the effectiveness of the opponent's questioning because s/he will be disconcertingly concerned with saying or not saying anything that might provide a ground for your anticipated Batson objection. Suppose you do anticipate that your opponent has relied on race or gender in exercising his peremptory challenge. What do you do to raise a prima facie Batson violation? Here are a few suggestions: (1) Object to the opponent's improper use of peremptory challenges on a certain prospective juror(s) on the ground that the strike was based on race or gender; (2) Identify the prospective juror by number and by name from the list; (3) Ask that the panel of all the prospective jurors not be discharged until the court has an opportunity to hear your Batson challenge and the opposing counsel's response and then to rule definitively on your Batson objection; (4) State the improper factor, i.e., race or gender, that you believe was used by opposing counsel to exercise the peremptory challenge; (5) Recite the race or gender of the prospective jurors that you believe were excluded improperly by peremptory challenge and get the court to take judicial notice of it; (6) State the racial or gender composition of the jury that was selected; (7) Indicate for the record the racial composition of the entire panel of prospective jurors. (You'll need to have a chart and keep good notes on the race and sex of venirepersons and the questions that the opposing counsel asked each prospective juror, particularly whether the opponent's questions to the prospective jurors in question are relevant; make yourself a chart to help keep track of race and gender for your Batson challenge.); (8) Ask the court to require the opposing counsel to provide his/her reasons for the use of each of the questioned strikes; (9) Ask for a hearing at which you can prove that the race or gender neutral explanations were unworthy of belief, i.e., not genuine. If, at the first phase, you have met your burden of producing evidence to show a prima facie Batson violation, the opposing counsel will almost certainly testify at the second stage as to his race or gender neutral reason for exercising the peremptory strike. If opposing counsel does call herself as a witness, you have the right to cross-examine. Before you cross, try to get discovery of counsel's notes under your state's version of the Jencks Act. If counsel refers to his notes prior to or during direct, ask for production of them on cross. If the trial court won't allow you to inspect the notes, ask the court to review them in camera. If the judge still refuses to grant discovery, ask to have the notes placed in the record for appeal. [Tip: Opposing counsel may have a race code in his/her notes or on his/her seating chart.] The remedy for a Batson violation is either to seat the improperly challenged juror or to get a new panel. Ask for the remedy that helps you most. Other Batson cases: Powers v. Ohio, 499 U.S. 400 (1991) holding that the defense has standing to raise a Batson issue irrespective of whether the accused and the excluded juror(s) are of the same race; Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991) holding that Batson also applies to civil cases; Georgia v. McCollum, 505 U.S. 42 (1991) holding that, because the right not to be excused because of race belongs to the juror(s), the prosecution has the right to assert a Batson objection against the defense efforts to excuse jurors because of race; J.E.B. v. Alabama, 511 U.S. 127 (1994) holding that Batson applies to exclusion from jury service based on gender (1). Look at these two cases reversed for Batson errors: Miller-El v. Dretke, 545 U.S. 231 (2005); Johnson v. California, 543 U.S. 499 (2005) (Miller-El suggests that some proof of discrimination can can be made through showing broad practice and patterns in previous cases; it also allows comparative analysis of those kept on the jury vis a vis those struck. The Johnson case was reversed for an improperly burdensome rule regarding defendant's initial proof that discrimination motivated the prosecution's peremptory challenges; the proper standard is whether the defendant has raised a reasonable inference of impermissible group bias in the prosecutor's use of peremptories.); Rice v. Collins, 546 U.S. 333 (2006) upheld a California trial judge's rejection of a Batson challenge; Snyder v. Louisiana, 552 U.S. 472 (2008) holding that the prosecutor's proffered reasons for striking black prospective jurors were a pretext for racial discrimination and required reversal as a Batson violation. See also Rivera v. Illinois, 556 U.S. 148 (2009), a reverse-Batson case, holding that the trial court's good faith error in denying defendant's peremptory challenge to a prospective juror did not deprive the defendant of a right to trial before a fair and impartial jury. [Tip: Here's a novel potential Batson defense challenge that you might consider when you know that the prosecutor has researched jurors' prior criminal history: If you suspect that the prosecutor is checking prior criminal history only of members of an identifiable class, e.g., racial or gender, consider, for purposes of a Batson challenge, asking for discovery of the information gleaned during the criminal history checks that were done; most courts won't give you information contained in criminal history records and, of course, defense lawyers are not permitted to access the National Crime Information Center databases of criminal history; prosecutors are.] Thaler v. Haynes, 559 U.S. __, 130 S.Ct. 1171 (2010) held that Batson does not require that the trial judge reject a demeanor-based explanation for a challenge unless the trial judge personally observed and recalls the aspect of the prospective juror's demeanor on which the explanation is based. Felkner v. Jackson, 562 U.S. __, 131 S.Ct. 1305 (2011) reversed the Ninth Circuit and held that, on federal habeas review, AEDPA "imposes a highly deferential standard for evaluating state-court rulings" and "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. __, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) [Note: Texas lawyers should be aware that state case law holds that Batson does not apply to religion-based peremptories, see Casarez v. State, 913 S.W.2d 468 (Tex. Crim. App. 1995).] For the most current scholarship on Batson, read for free the thirteen articles in the Batson Symposium, Iowa Law Review, Vol. 97, No.5 (July 2012).
Scout your opponent. Without fanfare, try to watch your opponent conducting a voir dire jury selection. We are creatures of habit. Opposing counsel is no different. Expect her to employ much the same approach in your case.
Use pretrial motions to improve your voir dire position. Use pretrial motions to educate the judge on your theory of the case. If the judge knows your theory of the case before voir dire begins, the judge will be aware of the importance of your questions to your exercise of peremptory challenges. If the case has had extensive publicity or involves a potentially explosive issue, e.g., sexual molestation of a child, you might be able to persuade the trial court to allow individual questioning of the prospective jurors. If the prosecution has access to NCIC computer-generated records of arrests and convictions of the prospective jurors or records of prior jury service and verdicts, the defense may choose to file a discovery motion seeking disclosure or sharing of this information to level the playing field. [Note: If one prosecutor is at the courtroom computer running the names of the jurors for prior criminal records or prior jury history, the defense may want to structure the voir dire to reveal this to the panel.] Use strategic motions in limine to control the subject matter of your opponent's anticipated questioning of the prospective jurors. Be ready with a written fill-in-the-blanks Batson motion. The defense may give thought to courteously moving the openly prosecution-friendly judge to refrain during the challenge for case colloquy from partisan efforts to rehabilitate venire members who are subject to defense challenge for cause.
Prepare an ideal juror profile and a worst juror profile that reflect the specific characteristics of what you visualize as the perfect juror and worst juror for your case. If you are not an experienced trial court veteran, this one takes some advance thought and brainstorming with colleagues who may have more experience with jurors. Consider in advance the personal characteristics that you will look for in the venire, and be ready to discover and identify the presence of these factors in the venire.
Use a short written questionnaire to obtain vital information. Judges typically allot 30 minutes to an hour for juror voir dire. Jurors are less than forthcoming with candid answers when speaking in a group of strangers. You will get much more information if you combine voir dire with a questionnaire (1). A questionnaire allows a prospective juror to divulge private attitudes and information. (1- tips) This may differ considerably from what the juror would be willing to make public during the oral questioning by counsel or the court. Some judges don't seem to comprehend this. (See the next pointer.) A questionnaire also allows you collect much more information than you can by oral questioning. Consider, for example, how long it would take to orally ask each juror what TV shows s/he likes to watch vis a vis asking the same question in a written questionnaire. [A study suggests that shows like Cops, Rescue 911, etc., are watched by those who are conviction prone - a little scary, since I'm a Cops fan.] When you start preparing, consult this lady lawyer/jury consultant's blawg for a whole library of free samples of well crafted jury questionnaires from major cases, e.g., (1 - American Sniper murder case), (2 - Michael Jackson child molestation case), (3 - sample); the samples are lengthy; you'll need to customize and trim 'em down for your case.
Be aware that you are safer putting sensitive questions requiring lengthy responses in the written juror questionnaire. People are more honest on a questionnaire than in open court. Show-of-hands questions and "yes" and "no" answers don't tell you much about your future decision makers. Also, you can include questions in a questionnaire that you wouldn't dare risk asking the entire panel, "Have you or anyone in your family been the victim of sexual abuse?", "What do you think about criminal defense lawyers?", "Why do you feel that way?", " On a scale of 1 to 10 ( 10 being most open and 1 being least open), how would you rate yourself on being open to changing your mind once you've formed an opinion?", etc.
Try to utilize a jury questionnaire in every case. A questionnaire (1) is essential to you in obtaining information that will provide a basis for a challenge for cause and allow you to make intelligent use of your peremptories. Preparing a questionnaire is not overly difficult. You don't have to have a jury consultant. One general source of questions is the somewhat dated Bennett book published by West and available through Westlaw. If you are working on a shoestring budget, you can download several different questionnaires from that book and then do "cut and paste surgery" to customize one for your case. You can download several sample questionnaires , i.e., DUI, Murder (gang), sexual assault, sexual assault of a child, and death penalty, in pdf format online. Once you have constructed a questionnaire for one case, with a little surgery it can often be used for subsequent cases of the same ilk. It's getting that first one done that is laborious.
Construct a questionnaire that is fair to both sides. You'll be asking opposing counsel to agree to the use of a questionnaire and to the contents of it. Be even-handed in putting together your proposed questionnaire. Seek to identify biases about specific issues; obtain demographic data, personality characteristics, attitudinal and world-view information; frame your questions to promote feedback that will help you in predicting what role the prospective juror will play in the juror hierarchy during deliberations. In deciding about each question, ask yourself whether and how the answer will help you. Follow up questions by asking, " Why do you feel that way?" If possible, frame questions so that they explain why the question is being asked. Use check boxes for yes or no questions. Try to have four or five key questions that will provide you with a glimpse into the juror's private belief and attitudinal system. For example, you probably won't want negotiators if your objective is a hung jury.
Use paper that will make copies and color code the jurors' answer sheets to the questionnaire. You may find it helpful when constructing the questionnaires to use paper that will make at least two copies of the questionnaire. If so, color code the answer sheets of your questionnaire for each party, e.g, top sheet for the court, light green sheets for the prosecution, light blue for the defense.
Get opposing counsel to agree to the contents of the questionnaire well before trial. Try to send your first draft of the questionnaire to opposing counsel 4 to 6 weeks in advance of trial. Before the trial setting, send a courtesy copy of the agreed questionnaire to the court.
Give yourself time to examine the answers to the questionnaires before you begin the oral questioning. When you have agreed upon a questionnaire that is more than a couple of pages long, consider asking the court to bring the panel in one day early to fill out the questionnaire. If the questionnaire is only a page or two in length, ask to have the prospective jurors brought to court to complete the questionnaire in mid-morning; have the panel members report back for oral questioning in the early afternoon. The point is that you want to have an opportunity to examine the answers to the questionnaire before you begin your oral questioning.
NEW - Find out the size and estimated value of your prospective jurors' homes, and view their homes from an aerial satellite camera - all for free. You can go to a number of web sites, e.g., (1 very good with satellite bird's-eye view), (2 - home values only) and, with the address and zip code of a home, determine its present estimated value, together with its size and location in relation to other houses in the area. The estimated values are claimed to have a 7-8% median error. You'll also see the home and others on the block from a satellite camera. This site (1) provides neighborhood demographics. If you have Internet access from the courthouse and a sidekick to do the computer work, this information can be at your fingertips before you make the decision about challenging a juror. Before too long, you will be able to use your computer to drive down each juror's street and view his/her house from ground level. Search "Google street maps," and you'll see what I mean.
Prepare an anticipated jury charge well before the jury voir dire and study it so you will know what the opposition's proof must be and what the judge will tell the jurors at the end of the trial. You can usually find a set of approved pattern jury instructions for almost any jurisdiction. You can't instruct the venire on the law during voir dire, but you can ask questions that relate to the potential jurors' ability to follow the law. Tactic: I suggest that you preface any discussion of the law with the phrase, " If I am right, at the end of this case Her Honor is going to tell you (insert the relevant applicable law from the pattern instructions. I need to ask you how you feel about that law.)
Prepare a jury selection seating chart for jotting down information about each of the prospective jurors in the appropriate block and develop a secret rating code. Scout the courtroom and find out how the jurors are seated. Prepare a voir dire seating chart and a seating chart for the jury box itself. Some courts will provide you with a voir dire seating chart. Because courtroom layouts differ, there is no standard form for the voir dire seating of jurors; however, here's an example (1 - from a court in Washington state). Set up a rating system. You might consider a 1 to 5 point system, with 1 being "best" and 5 "worst." Tactic: One of the craftiest criminal trial lawyers I ever knew used to add an interesting 180 degree twist to his written jury selection chart. This lawyer writes "good juror" as a synonym for the "terrible # 5 juror" and "bad juror" for his "good #1 juror." He then was somewhat reckless in placing his seating chart with his misleading notations in a place where it could be seen by the prying eyes of opposing counsel. He called this strategy "messing with their minds." [This is the same guy who always preferred to sit back, watch, and listen to the prosecutor questioning prospective jurors. He felt like he could size prospective jurors up easier when he could devote 100% of his effort to them, rather than trying to also pose questions and react to the answers. Bob was a smart chap.]
Write out your anticipated voir dire questions in advance of trial. Until you have tried a number of cases before juries, I suggest, as part of your pretrial planning, that you force yourself to go through the drill of deciding upon appropriate voir dire questions, including follow-up questions. Then, study these questions until you are familiar with them. If you are serious about improving upon your craft, find a couple of willing guinea pigs and practice asking your questions in a dry run. Try to embed several open-ended questions that are designed to reveal attitudes of persons you don't want on your jury. Ask these embedded questions in the middle portion of your questioning, so you won't run out of time before posing them. Type you questions in easily readable type on numbered pages. Keep the pages loose so you can slide them under one another rather than turn pages. Page turning makes your questioning look canned. The idea is not to question from the write-out. Don't ever read your voir dire questions!!! Question extemporaneously. If you must use the write-out questions, use them as an occasional guide. If you read questions to the panel of prospective jurors, you will lose your emotional and ethical connection with the jurors.
Memorize and practice delivering your opening and closing lines and know the phrasing of your key questions. Remember, you want to look good. You'll be known in part by the fruit of your lips. The prospective jurors will be most attentive at the beginning of your voir dire. That's your only chance to make a good first impression. They'll remember most of what you say at the end. So, pick your beginning and ending voir dire statements carefully. Commit these opening and closing lines to memory. It'll be difficult the first two or three times, but thereafter, subject to a bit of tinkering, you will always be ready to open and close a voir dire. These are the only parts of the voir dire you need to memorize.
Figure out what it is about your case that scares you most, i.e., the biggest problem, and plan how you will broach the subject in voir dire. It's best to face your problems head-on and deal with them, rather than burying your head in the sand. This takes planning, since you cannot concede a problem without it being held against you by the jurors. What you want to do is construct questions that evince your concern with how the jurors may view apparent weaknesses in your case. To find the scary parts of your case, you will have to consider the likely prejudices and biases that jurors will bring with them. What kind of juror prejudices and/or biases are likely to be evoked by the evidence? Consider the belief systems and attitudes that many people may share. Consider cultural stereotypes in our heterogeneous population of jurors. For example, people may have very set attitudes concerning: the accused not testifying, the accused's prior criminal record, eyewitness identification, the war on drugs, the police or government being on trial, the psychological defenses of insanity or diminished capacity, retreat as a condition precedent to self-defense, anger or fear that may have created an extreme emotional disturbance in the accused's mind in a manslaughter case, etc.
Sort out the ways of dealing with the juror who gives off-the-wall paradoxical answers to questions. One method of handling the extreme juror is to simply ignore the ridiculous answer. Another approach is to attempt to talk to the juror who voices an opinion you don't like. Without being argumentative, present the juror with an even more extreme opinion than the one s/he expressed. If the juror accepts the extreme posited position, you can challenge for cause. If not, the juror will appear to have backed off from publicly adhering to the initial opinion (though you still may want to use a peremptory on him).
Think about your courtroom location. Find out in advance whether the trial judge has any requirements as to where you sit or stand in questioning the prospective jurors. It is quite common in jurisdictions where you question a large panel en mass to allow lawyers to move freely about in the well during jury voir dire. On the other hand, some judges will require that you question from a lectern. In some cases, where, for example, you are questioning prospective jurors who are seated in the jury box, you may be required to question from a seated position. In short, scout out the court, and choreograph your jury voir dire in advance.
Prepare two-sided numbered cards for the venire members to hold up in response to questions directed to the group: Depending on whether the case is a felony or misdemeanor, you are typically speaking to a group of 20 to 50 prospective jurors. Suppose you ask a question of the panel, e.g., 'How many of you folks have a friend or a relative who works in law enforcement?" or you ask a question of a specific juror, e.g., "Mr. Firefly, if someone you loved was charged by the government with a serious crime, would you want that person to have a lawyer to defend themself against the charge?" but want to have everyone else answer the question. How do you get your answer from everyone in the assembled group? For many years, lawyers have resorted to a "raise-your-hand" approach. In the process, hands are often missed. The better approach is to supply each juror with a laminated numbered card that is easily raised up, held and seen. If the court does not supply numbered cards, make your own using cover-stock and stick-on plastic laminated sheets, available at office supply stores. You can use your word processor and copier to print two-sided numbered cards. Prepare one card for each prospective juror you anticipate being on the panel. Once you have the cards prepared, use two sheets of sticky plastic laminate to seal each card. In courts that still rely on the raise-your-hand approach, you will need to get the court's permission to have the bailiff pass out the numbered cards before questioning of the panel begins. Don't forget to collect your cards after voir dire is complete. Have a back-up set handy.
Listening and observing during opposing counsel's questioning may be more important than talking. A big part of your job in voir dire is to listen and watch during both your questioning and the opposition's questioning. To make skillful use of their peremptory strikes, some of the best jury pickers I know depend heavily upon critical listening (1) (2 - active listening) (3) (4 - listen to Listening Is a 10-Part Skill) and observing during the opposition's questioning. Rather than counting solely on their own questions to get a feel for the prospective jurors and to ferret out information, these advocates focus on listening and watching when the other side is talking to the venire. It's easier when your opponent is talking because you can concentrate on receiving without having to transmit. Also, when I say, "Listen critically," I don't mean listening selectively. I mean listen like a safecracker listening for the tumblers to click and reveal the combination.
Look for potential enemies among the venire. As previously mentioned, jury voir dire can be viewed, in part, as a "deselection" process that requires you to decide how you will exercise your peremptory challenges (Hence, the title of this monograph before I put it online was more correctly "Jury Deselection."). You are deciding who you don't want on your jury. The opposition is doing the same thing. In voir dire, you are trying to find and strike the people that would be against you from the start.
Look for potential friends among the venire. You are looking for people who are friendly to you. In trying to locate your "friends" among the panel, ask yourself, "Whom would I want to invite home for dinner? Would they accept my invitation?" If you find such a person, be wary of making it equally obvious to opposing counsel.
Consider opening your questioning in a novel manner. The typical approach to jury voir dire is to introduce yourself (and, if you are a defender, your client) and then explain briefly how the questioning process works. That's okay for novices. But consider starting in a more dynamic way. For your information, here are several novel approaches to opening that I have heard. In one case, after the prosecution had concluded, I watched a defender stand and ask as his first question, "Well, is it over? Have you heard enough? Are we done for? Aren't there two sides to everything? Have you ever seen a coin, a pillow, or a pancake that didn't have two sides? Let me visit with you in behalf of our side of this controversy." I saw another defender start his voir dire questioning by asking, "How many of you would want to be allowed to defend yourself if you were wrongfully accused of a crime? How many of you believe that there ought to be rules so that anyone in this country can get a fair trial?" Another defense lawyer opened her voir dire by asking, "How many of you believe that 'criminals have too many rights' ?" How many of you believe that, because a person is accused by the government of a crime, he is probably guilty?" Another asked, " How many of you believe that (name the client) can get a fair trial?" The list could go on. I'm not suggesting that you use any of these openings for your voir dire. My point is simply that you may want to start your voir dire questioning with a creative hook that engages your audience of prospective fact-finders, rather than simply standing up, introducing yourself and your client, and telling the jurors that "voir dire" means "to tell the truth" in Norman-French.
Defenders should be cautious about starting their voir dire with a lecture about the presumption of innocence, the burden of proof and/or the concept of reasonable doubt. It's always useful to have the trial court preinstruct the prospective jurors on these legal valuable legal concepts. The jurors are much more likely to take these individual rights to heart if reminded about them by the judge. Ask the trial judge to tell the jury about your client's right to the presumption of innocence, the prosecution's burden of proof, and the standard of proof beyond a reasonable doubt. But don't open your voir dire with these concepts. I always remember the Calvin & Hobbes cartoon of little Calvin writing a wish letter to Santa Claus saying, "I'm entitled to the presumption of innocence and proof beyond a reasonable doubt." That kind of plea doesn't work with a jury any better than it works for little Calvin with Santa!
Shed a bit of ego. Most of us are ego-centered. This is particularly true of those who make their living trying to persuade others in courtrooms. Let's face it. Many young lawyers who stand in front of a group of jurors are silently praying, "Love me - love me - love me. But enough about you!" It's very easy for an advocate to view the overall trial, including the jury selection process, as a lawyer focused event, where all eyes are on the lawyer as performer. This is a mistake. The effective advocate is the one who puts his/her ego on the back burner and recognizes that the trial is not about him/her. The effective trial lawyer is the one who can shed ego and concentrate on the task at hand. You are a player, but, more importantly, during voir dire you are an observer and listener. You are watching and listening because you must consider what will resonate with the jurors selected for the case. Don't let you ego get in the way of you powers of observation.
If questionnaires are being used, fill one out yourself, and use it as a self-revelation prop to introduce yourself to the jurors. Jurors are more likely to accept a message from a person they like than from a person they don't like. How do you make it possible for jurors to like you? One way is to reveal some good things about yourself during voir dire. I suggest that you use the jury questionnaire as a vehicle for telling the jurors some positive things about yourself, i.e., that you are a good person. Here's how you do it. Simply say, "The court has asked each of you to fill out this jury information questionnaire (Hold it up.) that asks you to reveal some personal data about yourself. In any other context, most of you would probably not feel good about strangers prying into such personal matters. Of course, none of us wants to invade your privacy, but this sort of personal inquiry is part of the jury selection process. We certainly appreciate you time and effort in filling out this questionnaire. In the interest of fair disclosure, I've filled out one of these questionnaires myself. (Hold it up.) We've found out quite a bit about you from your questionnaire. Turn about is fair play. Mine tells you that (recite some revealing and worthy information about yourself based on the personal data questions contained in the questionnaire.)" [Caveat: When you reveal information about yourself in voir dire, don't go overboard, and never try to match every juror statement of self-revelation with a self-disclosure of your own.]
Point out that this is your only chance to talk with the people who will be jurors. Tell them that this will be the only time you are allowed by law to visit with them. Emphasize that this isn't an oral examination or a personality test. Tell them there are no right or wrong answers to any of the questions they'll be asked. Let them know that all you ask of them is that they tell you how they really feel.
Always use the juror's name. The sound of his or her own name is a sweet music to the juror's ear. When you use the juror's name, it recognizes the juror as an individual. Most of us don't have the ability to memorize a string of names. If you are one who can't memorize names, when you address the juror for the first time look down at your seating chart, get the juror's name, then look at the juror and address his/her by name. Don't read the juror's name from your chart and then look up at the juror. Visualize the difference between these two approaches. It's easy to see why the latter is ineffective.
Let the prospective juror articulate his or her view on crucial issues. Don't speak for the juror. This is one of the most common and serious mistakes of the rookie advocate. You want things to go smoothly. You want the juror to see it your way. So, you make the mistake of putting words in the mouth of the juror. You ask leading questions. You interrupt the juror's answer. You assume you know what the person wants to articulate. It ruffles the juror's feathers, other jurors see it as pushy and impolite, and, most important, you don't get to find out what the prospective juror really thinks and feels. Use questions that focus on potential problems with a phrase such as, " I have a concern about (state the problem). Would you share your feelings or reaction with us?" The goal here is to get the juror talking and really listen (1) to what s/he is saying. [Note: Plain experience teaches us that people think in different ways. Don't we refer to people as "broad-minded" (viewing things in an expansive way and thinking about all the possibilities) and "narrow-minded" (lacking in breadth of vision and unable to consider various causative possibilities)? Whether you want a broad-minded or narrow-minded juror is a matter that depends in part on your theory of the case, but it will help you in jury selection to know something of the way your individual jurors sort things out.]
Consider the level of the prospective jurors' level of experience. If your case involves a subject with which a juror has had previous experience, that juror is more likely to have a fixed opinion about that subject. People who have not had direct person experience with the subject are more tractable, i.e., capable of being led, taught, managed, controlled. Find out whether the juror has had direct prior experience with crucial subjects. The jury questionnaire is the best method of obtaining preliminary insight regarding juror experience with particular subjects.
Ask the prospective juror to visualize. Visualization involves asking the jurors to try to remember how they felt in a certain situation, i.e., how the juror felt when s/he was falsely accused of doing something s/he didn't do. You can utilize this technique with any feeling that is key to your case. The purpose is to have the jurors experience the emotion. Mechanically, you ask one prospective juror to remember the feeling and then ask that juror to share the feeling by describing how s/he felt. Suppose, for example, that the theme of your case is betrayal. Focusing on the concept of betrayal, you might ask, "May I ask you to close your eyes for a second and go back in time to the worst betrayal that ever happened to you? I want you to think about it and how you felt. Can you share how that made you feel?" The purpose is to rekindle the emotion in the members of the group. You might try visualization in a case where the accused is a minority member and the panel of prospective jurors is overwhelmingly Caucasian and Hispanic. For example, you might ask a Caucasian juror, "Suppose that you were in Harlem or Atlanta or Detroit or some other community where overwhelming majority of the citizens are African-American. How would you feel if you were a white defendant in a courtroom of such a city where virtually everyone else, and I mean the judge, the court reporter, the clerk, the prosecutor, the witnesses and all of the juror, were black?"
Seek information rather than trying to change outlooks or overpower. Don't tell 'em how to feel. Find out how they feel. As I said above, after many years of teaching trial advocacy the biggest mistake that I see in rookie defenders and prosecutors is their tendency to want to control the answers of panel members, i.e., to try to influence the basic thought process and world views of the venire. In law school, we've taught you to argue, not to converse. Voir dire is about conversation (1), and argument is the worst sort of conversation. Jurors hear you when they are moving toward you and they aren't likely to do that when your words are pursing them. So don't be too passionate about trying to set your prospective jurors right. Look at this way, jurors don't resist change - they resist being changed. Beginning lawyers work too hard preaching to the venire, trying to get them to promise what they will or won't do. It doesn't work. Jurors are like buffalo - you can make 'em go anywhere, just so long as they want to go there. Let them tell you what they think. Don't try to tell them how you think they should think! Most of us, particularly the 'mature seniors aka fossils' like myself are so fused to our entrenched core belief systems that we stubbornly and blindly cling to them, even when they are wrongheaded. Hey, every person on the planet sees the world through a different knothole. In a trial that lasts several days, you don't have enough time or formats to change settled, basic attitudes that have been molded over lifetimes. Your job is not to tell these folks how to think, but rather to find out what they think and how they think. You try to eliminate the venire members who will not be receptive to the story of your case and the values it embraces. You must find the message that appeals to the jurors, but you won't be able to materially change your basic trial story simply to fit the jurors for the case. If you are to be successful, the impaneled jurors must be receptive to your trial story. That's why the de/selection process is so vital for you in finding out the prospective jurors' interests, views, expertise, life experiences, diversity, etc. Keep in mind the old saw: The evidence won't shape the jurors, the jurors will shape the evidence.
The following words, uttered in another context by the agnostic British philosopher Bertrand Russell seem useful to me when we are exploring how our beliefs and desires influence our receptivity to facts:
What a man believes upon grossly insufficient evidence is an index into his desires
- desires of which he himself is often unconscious. If a man is offered a fact which goes
against his instincts, he will scrutinize it closely, and unless the evidence is overwhelming,
he will refuse to believe it. If, on the other hand, he is offered something which affords
a reason for acting in accordance to his instincts, he will accept it even on the slightest evidence.
Go from general to specific in your questioning about attitudes and experiences. (Some call this "funneling.") Start with general attitudes and experiences, and then go to specifics. For example, once you get a juror to indicate a general belief, ask him/her why s/he feels that way. Sometimes there is danger in getting too close in asking about individual experiences. For example, it could be risky to ask a prospective juror, "Have you ever been treated by a psychiatrist?" Instead, ask a general attitudinal question such as, "What do you think about psychiatrists?" A general experiential question might be, "Does anyone know anyone who has had psychiatric therapy?"
To determine juror attitudes, use short open-ended non-leading questions. Invite the jurors to give a revealing answer by asking the "how" and "why" questions (with a few "who, what, when, and where's" thrown in for good measure). For example, asking a juror, "How do you feel about (so and so)?" will elicit more information than asking, "Do you feel (so and so)?" The prospective juror who is asked, "What's your reaction to (so and so)?" will divulge more information than s/he would if asked, "Will you (so and so)?" Also, when you are probing for juror attitudes, don't frame the question with broad conclusory words such as "Impartial," "prejudice," or "bias" that telegraphs the "right" answer.
Utilize "if" questions" to probe for juror attitudes. One interesting approach to discovering attitudes involves the use of "if" (stem) questions. The "if" or stem question is akin to a fill-in-the-blank question. The questioner asks an "if" question and asks the juror to complete the thought in his own words. "If" questions can be quite useful on a jury questionnaire. Be careful not to phrase them in a form that would seek to pledge the juror to a particular set of facts. If you ask the question orally, you might say, "I'm going to start a question and ask you to finish it. (Ask the fill-in-the-blank question, e.g., "If a person accidentally made a mistaken identification of another person, it would probably be because (fill in the blank); if a person had been charged with a crime and did not testify in his own behalf, it would probably be because (fill in the blank))
Try to spot "angry" jurors. I think I recall a someone saying, "To the mean-spirited person, all else becomes mean." It is very disagreeable to the psyche to walk around being angry without anybody in particular to be angry at. Show me an angry person, and I'll show you a person who is afraid of life. Angry people are hard to persuade. Defense lawyers typically don't want jurors who are fearful and ready to direct their anger at the accused. Prosecutors may like these folks, and may even try to turn a juror's fear of crime into anger at the defendant. How do you spot an angry person? Our world view is sometimes written in our face. We all natively learn what a sourpuss (a grouch, a killjoy) is. [TIP: A sagacious Texas defense lawyer once advised me that he had a standing rule never to accept as a juror "a person with a mouth no bigger than a chicken's ass." If you don't understand the shrewdness of the rule, check it out the next time you're in the barnyard. Enough said.]
Learn to lead a juror when you need "yes" or "no" answers. There will be times when you will want to lead a juror, e.g., when you are trying to disqualify a juror with a challenge for cause. If you want to lead a juror and get "yes" or "no" answers, you will typically be asking questions that begin with leaders, e.g., "Can you," "Will you," "Do you," "Do you understand that." Of course, if you don't want monosyllabic answers, don't ask leading questions.
If you want to keep a juror talking, nod your head affirmatively while the juror is responding to your question. Your head nodding validates the juror, and nine times out of ten s/he will keep on talking.
Know that a substantial percentage of your venire and jury will be members of some organized religion. If you happen to be theistic but not religious, agnostic or atheistic, know that most of the people you'll be questioning will be members of an organized religion. When questioning prospective jurors about their pastime activities, you may choose to ask if anyone is active in his/her religion (church, mosque, synagogue, temple, etc.). Information about a person's religion means more if you know something about that religion. Take some time to learn from the many religion based sites on the Internet.
Express to the prospective juror your true appreciation when the juror openly and candidly shares useful thoughts or information. Acknowledge candor by responding, perhaps even sharing your own feelings with the prospective juror in question.
As a way of explaining your inquiry and promoting dialogue, consider doing self-disclosure at the beginning of a topic. Man people aren't comfortable with airing their likes and dislikes in public. You can facilitate a prospective juror's willingness to self-reveal by doing it first. For example, to introduce the subject of prejudice, you might say, "I'd like to give an example of prejudice. Not too long ago, my home was burglarized. I feel that I couldn't be a fair juror in a burglary case because I'm still angry about that burglary. I'm prejudiced about burglary." On the issue of bias, you might say, " We all have biases. Like many of you, I have small children. I'm a peewee soccer coach, and I honestly don't know that I could be fair to anyone charged with child abuse. I probably wouldn't be a fair juror in such a case. Some of you might feel the same way. So, I need to ask you how you feel about (indicate the subject)."
Loop good answers back into your later questions. When one prospective juror says something good, you can repeat the favorable answer in questioning another juror. For example, you might try saying, "Mr. Smith, Ms. Jones just said (repeat the exact words of the first juror). How do you feel about that?" Don't ask what the juror thinks about the subject generally. Ask how the juror feels about the other juror's answer. It may be better to inquire how the juror "feels" or "reacts" to what the other juror said than asking what the second juror "thinks" about the subject.
Mirror the intelligence and social level of the prospective juror. When questioning a juror, consider yourself as a visitor in that person's living room. If you are visiting with a shy Hispanic female juror who is third grade teacher your manner will differ from that you would display when talking to a big-boned, tobacco-chewing, brawny, bold, Irish, gravel-voiced bulldozer operator. People are more open with people that they consider as being like them. Be subtle and moderate in mirroring. Adjust without being phony. [When we think about over-the-top mirroring, recall the Woody Allen movie Zelig about the fictional Jewish chameleon, Leonard Zelig, who transformed himself into the people around him, e.g., having never flown an airplane before, he flies the Atlantic Ocean upside down when the pilot of the biplane in which he was a passenger becomes incapacitated. Don't carry mirroring to the Allenesque extent.]
Find a common ground with the juror. Why would you want to establish common ground between yourself and your potential juror? Because research and common sense teach us that people are more inclined to trust those they know than strangers. If it didn't sound too obvious, you would probably like to say, "Mr. Juror, I'm wondering what sort of things you and I might have in common. May I take you out to dinner or, better yet, spend a few days at your house getting close to you and becoming your newest best friend?" Obviously, this is wishful thinking. You can't go from stranger to best buddy in a matter of minutes. But what you can do is establish some common interests between yourself and the prospective juror, so you will seem less like a stranger and more like someone the prospective juror knows? You might be able to establish a connection by asking the juror what s/he likes to do in her/his spare time. If you have enough knowledge of the activity to discuss it intelligently, you may be able to establish a common interest. People who view themselves as sharing a common ground with you are more receptive to persuasion than those who don't. They trust you more. Voir dire is your best opportunity to forge a mini-bond of shared interests with the prospective jurors. If the shared interest is relevant to the case, you may even be able to work it into your fact presentation and/or jury argument.
TIP: One of the top prosecutors in my venue starts her voir dire with these throw-down lines that have built-in bonding:
- "My name is (insert the prosecutor's first name). I would like for you (She says "y'all.") to know a couple of things. First of all, I've been a juror before. I was on a jury in a two-week case several years ago. And I learned a couple of lessons about mistakes that lawyers make. And I can promise you I learned from those lessons. Number one, lawyers talk way too much. And, second, a lot of times lawyers are condescending. And I can promise y'all that I'll never waste your time, and I will never be condescending (patronizing) to you (y'all) because I know what it feels like, because lawyers have done it to me.
Notice what this lawyer is doing. She's distancing herself from the time wasting, jaw-flapping, mouthpieces who spend too much voir dire time babbling, and she is self-identifying with the jurors, promising not to waste the jurors' time or be arrogant, condescending and/or patronizing. In effect, she's saying: " I will respect your time. I will treat you like a guest in my home. I will be straight with you. I will do what I say I'm gonna do. I will expose my vulnerabilities to you. I trust you." The subtext is "You can trust me. I'm one of you." This lawyer's likability index gathers steam from the start, and, if she keeps her promises, by the end of the case the jurors will want to adopt her and take her home, particularly if counsel on the other side happens to be a down-the-nose type, enamored of his own voice and heedless of the jury. [Caveat: Don't stretch to find an area of common interest with every prospective juror. Do it only when you do have a common interest and, even then, don't talk too much about yourself. When you focus the spotlight on yourself, you're probably being arrogant and/or pompous.]
Be sure you hear every prospective juror's voice. Make it a cardinal rule to have a conversation, however brief, with each venireperson who could be on the jury. If you can't think of anything else, ask them what they enjoy doing in their free time, e.g., hobbies, and follow-up. The people that wind up on juries are often the ones that neither side talks with. If you practice in a jurisdiction that allows lawyer questioning, make sure that you have used your voir dire opportunity to have a tete a' tete with every person that winds up on the jury for your case.
Look for the leaders (1), negotiators, and/or deal makers in the group of prospective jurors, and understand that they will wield disproportionate power as the group plays "follow the leader." After thirty years of teaching trial advocacy and viewing several hundred jury deliberations in mock trials, I am still continually amazed at how, in the confines of the deliberation room, strong personalities (the "leaders") rule the passive personalities (the "followers"). On reflection, I probably shouldn't be surprised at this dichotomy of personalities. Common sense would suggest that any group of twelve literate adults chosen at random from the general population would include people that would classify themselves and/or be classified by others as "leaders" or "followers." By followers, I mean what Mark Twain called "discreet sheep." These are the jurors who may wait to see where the flock (Twain called it the "drove") is going and go with it. Any group of decision-makers chosen at random will include certain members that, by force of will, exercise inordinate or disproportionate power over the group's deliberations. It becomes particularly interesting during deliberations when the jury contains a couple of Alpha wolf leaders who have diametric views of the case. Then deliberation typically becomes torrid debate.. Add to the mix the occasional maverick whose attitude is, "Whenever I find that I am on the side of the majority, it's time to pause and reflect," or "I believe professional wrestling is clean and every other sport is fixed" and you've got the potential for fiery dispute reminiscent of a hyena fight on Animal Planet. [Note: My observations here are anecdotal, based as they are on observing hundreds of mock trial jury deliberations. Some behavioral scientists have devoted their professional lives to studying and researching human behavior in groups. They have discovered, identified, and written about how people act in groups. These scientists call the subject "group dynamics." Read as much of this scientific literature as you can. Learn about the psychology of human behavior. This knowledge will help you use the jury voir dire to locate both the powerful and passive personalities. Visualize how each of these prospective jurors will act in the jury room during the deliberative process.] Don't overdo your questioning of persons you like. It can be a mistake to ask too many questions. Remember, the other side is probably listening to the jurors' answers. [Of course, it has been documented that a Texas defense lawyer may use a capital murder case as an occasion to grab a few winks. See Burdine v.Johnson, 262 F.3d 336 (5th Circuit 2001).] If you have a prospective juror that you like, you may not want to ask that person many revealing questions. The questions you do ask of the person you want as a juror should probably focus on the negative aspects of the juror. Sometimes a bluff will make the opposing lawyer think that you will strike the person you really want. On the other hand, if the other side is certain to strike your favorable juror, you may want to use that person as a sounding board to ventilate useful thoughts that may favorably impact others on the panel.
Talk straight. As you talk with the panel, don't be too verbally nimble. Avoid verbal trickery. It is a mistake to try to ambush, embarrass, or intimidate prospective jurors. You'll win the battle, but you lose the war if others on the panel resent your exercise of lawyer power to demean one of their fellows.
Don't use stock, boilerplate questions unless they will help you. It doesn't hurt to consult available books or monographs that provide you with hundreds of examples of possible voir dire questions. Use these practitioner's guides as a starting point for devising questions and custom-tailor them to your case.
Point out how important it is for all the jurors to have their heads in the game rather than relying on others to do their critical listening for them. Jurors who have gotten to know each other may fall into the habit of relying on certain of their numbers to do the critical listening. Caution them about how different people who have heard the same thing remember it differently. You might use a story, e.g., the village priest and the wine barrel, to illustrate your point. [The village priest story goes like this: "Let me take a moment to tell you a quick little story that relates to my next question: The residents of a small Spanish village determined to acknowledge their local priest by each bringing a bottle of wine to the parish house and pouring it into the priest's empty wine barrel. The priest was delighted and asked all the parishioners to join him in a glass of wine from the now full barrel. But when the tap was opened, only water came out. You see, each of the villagers had brought a wine bottle filled with water, thinking that all the others would bring wine and that one bottle of water wouldn't be noticed. Everyone wound up relying on someone else to fulfill commitment. I suppose we all understand that the point of the story from the standpoint of this case is that each of you has to bring your undiluted attention to the job of sitting in judgment of another person. May we have your individual commitment to listen carefully to all the evidence?]
Point out that the role of the jury is to decide, not necessarily to arrive at a verdict. Defenders may find it useful to use jury voir dire as a place to make clear to the prospective jurors that their job is to arrive at a verdict only if they can do so without giving up their personal abiding belief. In other words, in some cases the jury may not be able to reach a unanimous verdict (assuming that your state requires unanimity) because jurors see the case differently. Tell the prospective jurors, "The law doesn't require that you arrive at a verdict, only that you make a good faith effort to do so. If after prolonged deliberation some of you have an abiding belief that the verdict should be one way and others have an abiding belief that it should be the other way, you all do your duty by deciding not to decide. We call that a hung jury, and there's no disgrace whatsoever in that. The law makes provision for cases where there is simply a good faith inability to agree. After you've deliberated and discussed this case, each of you has the right and obligation to adhere to your abiding beliefs. You have a right to stick to your belief. A trial jury is not a group where the majority rules." [Note: After more than three decades of observing deliberations of jurors in mock trials, I am convinced that it is almost impossible for a single right-minded juror to turn a wrong-headed majority.]
Expect to see some blank expressions. At any given time, some of the prospective jurors will not be paying attention to the voir dire. Think back on your days in law school where attendance was mandatory or to your childhood when mom and dad dragged you to church. We all know that it's not easy to be attentive. Our minds wander. We reminisce. Erotic thoughts drift through our consciousness. We daydream. We think about food. We ponder our relationships. The prospective jurors in the audience will listen selectively during the voir dire process and, also, during the trial. We listen to hear the words we want to hear, perhaps to insulate ourselves. Don't be surprised or insulted when you see the empty faces. Bring the inattentive jurors into the fold by posing a question to them or to the person sitting beside them.
Talk less, listen more. As a rule of thumb, try to construct your voir dire so that you talk no more than 25% of the time and the prospective jurors talk the rest of the time. Work on developing your critical listening skills. The most effective compliment you can pay a prospective juror is to ask what s/he thinks about a subject and then listen, actually listen, to her/his answer.
Don't ever underestimate the collective intelligence of the American jury. There is an old proverb that says, "No one ever went broke underestimating the intelligence of the American people." If you believe that, don't apply it to American juries. Lawyers who underestimate the collective wisdom of American jurors are probably going to lose. Look at it this way: Trial lawyers are actors on the courtroom stage, and God, in the form of the jury, is the audience.
QUIK TIPS FOR SUCCESSFUL JURY VOIR DIRE
Look good! The jurors will be grading your papers from the first moment they see you until the trial is over. Everything you do must be done with the understanding that the trial is for the jurors, a group of people you must persuade and move to action. That means that you must inspire trust. You must appear sincere and honest. You must be likeable. You must persuade without being pushy.
Don't do it alone. Don't get bogged down in note taking. You need a colleague as a sidekick to serve as your eyes and ears in the courtroom. You also need a young person with computer skills to serve as your Internet information researcher. Put your sidekick in the jury box or on the other side of the courtroom to serve as your eyes, ears, and note-taker. From the sideline position, your sidekick can unobtrusively record information and observations, e.g., body language, facial expressions, liaisons with other jurors, dress (Don't forget to look at their shoes and other stuff!), about the venire members on the jury seating chart (The seating chart is discussed above in the "Getting Ready" section of this monograph.). You will pour over this chart when you make your selections for peremptory challenge. If you can find a good sidekick from among your lawyer friends, spend little, if any, time taking notes yourself. You may want to write a code letter or number, e.g., from one to five, indicating your off-the-cuff assessment/evaluation beside the name of each person you visit with. As to your Internet researcher, you should also have someone, perhaps a young college or law student, who is computer knowledgeable to Google every one of the prospective jurors, to check their membership in social networks and to run any available court records search on them. Here's a list of names, Internet addresses, description/focus, and membership numbers of most of the Social Networking Sites (SNS). Don't forget real estate and property records: With only an address you can find free online Internet information on home location and value from real estate companies such as Zillow. Realtor, Trulia. My favorite for checking homes is showmystreet.com (Slowly type the address you want, pause letter by letter, space by space and watch each time where the screen takes you.) Also, local property appraisal records (1) (Here's mine in Harris County, Texas.) showing home values for purposes of taxation are typically open and searchable on the Internet.
Recognize the different types of questions:
Ask open-ended questions for receipt of information.
Pyramid. When probing for a challenge for cause:
First, ask very open-ended questions.
Then, ask leading questions.
Use short questions.
Avoid legalese. What sounds good in a law school code course or in a stiff legal moot court
argument to a gaggle of pointy-headed lawyers in black robes won't have the same meaning
to a red-blooded defense jury of "painters, plasterers, plumbers, printers, preachers, pipe fitters, and
Don't use conclusory terms, e.g., "bias," "prejudice," "unfair." Most folks don't like being asked,
in a group of strangers, whether they are prejudiced, biased, and/or unfair.
Quite naturally, they won't give you a straight answer to that sort of question.
Listen - Listen - Listen!
Observe - Observe - Observe!
Ask follow-up questions.
Deal with harmful evidence and harmful attitudes. Discuss, don't hide.
Face the part of your case that scares you most. See Getting Ready above.
Make it interesting. Do that by letting the prospective jurors do most of the talking.
When you run into the loquacious juror who tries to monopolize the questioning and won't
let you get a word in edgewise, try to limit the juror to three or four answers.
Deal with the relevant issues.
Make the prospective jurors think.
Don't read from your list of prepared questions.
Don't accept silence. Probe without invading the juror's sense of privacy.
Try the old bromide: If you don't talk, you don't walk.
Ask the prospective juror who gives an abstract answer how the
answer will affect his judgment in the case.
Let the prospective jurors educate themselves. Don't preach.
Show your feelings without disclosing your negative judgment of values displayed by the jurors.
You can't ask jurors to reveal their inner feelings without being willing to show some of your own inner warmth.
Try to inspire trust. Do this by being honest with the prospective jurors. Tell the truth.
Don't hide the ball. Talk from your soul and gut.
Show 'em your eyes and hands!
Don't get too close to the bone on sensitive, highly personal, or embarrassing issues.
Wait and take such issues up at the bench out of the hearing of other venire members.
OBJECTING DURING THE VOIR DIRE
There are a number of things that litigators are not supposed to do in jury selection. There is insufficient space here to review the exhaustive case law regarding improper voir dire, but let's mention a few errors that you should be on the lookout for. You can object during voir dire. Indeed, it is important to recognize that if you don't object to opposing counsel's misconduct during voir dire, you waive any error for appeal. [Tip: Be certain that the voir dire is recorded, i.e., that a court reporter is present and recording the voir dire proceedings. Make sure that you request it, that the judge orders it, and that the court reporter is in place and ready to record when the voir dire begins. If an error occurs and your valid objection is not recorded, there is no record to appeal from.]
Here is a list of a few objections you may make at the voir dire phase:
- Being denied the opportunity to put a question - What if the court unduly prevents you from asking an appropriate question? Your objection to the court's action should include an assertion that "the court's ruling prevents me from being able to intelligently exercise your right to challenge for cause and also from intelligently using our allotment of peremptory challenges." Ask to be allowed to make an offer of proof as to what the prospective juror's answer would be.
- Being hamstrung by the court unduly limiting the time for your voir dire questioning - What if the court drastically limits the time allotted for voir dire? Your objection to the court's action should be that it deprives you of the right to elicit information from the venirepersons that might indicate a potential juror's inability to be impartial, fair, and truthful, and that it also deprives you of the right to obtain the information you need to make intelligent use of the allotted peremptory challenges.
- Asking a juror to prejudge the weight of evidence or the credibility of a witness.
- Seeking an outcome determinative pledge or commitment to convict, acquit, or punish on a hypothetical set of facts. [Note: It makes sense that lawyers should not be allowed to determine in voir dire what a juror's verdict would be if a given set of facts were proven.Texas lawyers should be aware of Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) indicating that an improper "commitment" question occurs if one or more of the possible answers is that a prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the questions, e.g., a voir dire question seeking to determine whether any venireperson would have an automatic predisposition to find a person guilty simply because he refused to take a breath test. See also Medina v. State, not reported in S.W.3d, WL764444 (Tex. App. - Texarkana 2004); Gillespie, In Standefer v. State the Texas Court of Criminal Appeals Clarifies the Role of Commitment Questions in Jury Selection in Criminal Cases, 54 Baylor L. Rev. 581 (2002).(1)]
- Seeking to pledge or commit the juror to a finding on the credibility of a witness.
- Informing the prospective jurors of (inadmissible) evidence.
- Informing the prospective juror of supposed personal knowledge of counsel concerning the disputed facts.
- Arguing factual inferences or legal conclusions.
- Seating or excluding jurors in capital cases. [Space prevents any meaningful discussion of this ground for objection, but here are a few cases to get you started in your research regarding questioning of venirepersons in capital cases. Witherspoon v. Illinois, 391 U.S. 510 (1968); Davis v. Georgia, 429 U.S. 122 (1976); Lockett v. Ohio, 438 U.S. 586 (1978); Adams v. Texas, 448 U.S. 3 (1980); Wainwright v. Witt, 469 U.S. 412 (1985); Turner v. Murray, 476 U.S. 28 (1986); Lockhart v. McCree, 476 U.S. 162 (1986); Darden v. Wainwright, 477 U.S. 168 (1986); McClesky v. Kemp, 481 U.S. 279 (1987); Gray v. Mississippi, 481 U.S. 648 (1987); Ross v. Oklahoma, 487 U.S. 81 (1988); Morgan v. Illinois, 504 U.S. 719 (1992); Uttrecht v. Brown, 551 U.S. 1 (2007).
[For more on objections, see the CCJA Objection page.]
A FEW GENERAL DEFENSE VOIR DIRE QUESTIONS WHEN YOUR MIND GOES BLANK
You will find many trial practice books in your local law library that will provide you with a slough of boilerplate questions for voir dire. The CCJA publication on Jury Deselection contains several hundred sample questions for voir dire. Read the examples for ideas. With each trial, you will add to your own notebook of sample questions. Here's a very brief sampling of the sort of questions you will be collecting. Some of these questions, e.g., tattoos and piercings, are considerably more personal than you may find comfortable asking in a group? Remember, before you start asking questions that preload the people you may want to keep, ask the questions that will allow you to get rid of the folks who are subject to legal challenge for cause or who need to be struck with peremptories.
(Stock Opening) May it please the Court. Your Honor, may I approach the jury?
(Stock Greeting) (Pause. Establish Z-glance eye contact with the panel.) Opposing counsel, ladies and gentlemen of the jury, good morning (or good afternoon). (Don't say "morning" if it's afternoon.)
(Introduction of Yourself and Your Client) As Judge (name the judge) told you, my name is (state your name). I've been a lawyer here is town for (state the period of time). It will be my honor and privilege of speaking to you in this case on behalf of (name your client). (Name your client) would you please stand. [Note: When you introduce your client, it is often advisable to position yourself close to the client, perhaps touching him on the shoulder or arm. You can walk over to the client at counsel table for the introduction and stand behind him/her or, if you have him/her stand, beside him/her. As an alternative, you might have your client come to where you are in the courtroom (It will usually be closer to the jury and will give the jurors an opportunity to see the defendant in full figure.) and stand beside you as you introduce him/her. You will need to alert the client prior to the trial that you are going to introduce him/her. The client needs to look good and make eye contact wit the jurors. As to the label you will use in the introduction, never refer to hi/her as "the defendant." Don't use the client's given name, e.g., Sam unless you are sure that the trial allows it. Normally, it is best and safest to use the client's given name and surname, e.g., Mr. Sam Smith.]
(Importance of Jury Trial) Long ago, people accused of crime had to prove their innocence by submitting to "trial by battle" or "trial by fire" or "trial by water." If they escaped unharmed they were declared innocent. If they were killed in battle or if they were burned to death or drowned, they were condemned as guilty. To us today such cruel procedures make no sense. As Americans, we believe that the right and fair way to decide a disputed case is to submit it a jury - group of people selected from all parts of the community and from all walks of life. We are willing to trust our life, our property and our liberty to the reasoned judgment of twelve (or six) of our fellow citizens.
(Honor of Jury Service) As a juror, you'll serve as an office of the court along with the judge and us lawyers. Only a small percentage of the community are privileged to serve as jurors. It's one of the highest responsibilities of being an American.
(Counsel/Parties Prohibited from Talking to Jurors) The rules of court prohibit the lawyers and the parties to a lawsuit from talking to jurors during a trial. So if we see each other outside the courtroom and I don't talk to you, please don't be offended. (This goes for (name the client) also. He's a party to the lawsuit and also prohibited from visiting with jurors.)
(Lengthy Trial - Approximate Length) I wish I could tell you precisely how long this trial will last. I can't do that, but I can give you a ballpark estimate that it may last approximately (indicate the length of time). Will this impose a special hardship on anyone?
(Fronting Your Theme) This case is about (state your theme in ten key words). In a nutshell (state your theory of the case in one or two sentences totalling thirty words or less.) I'd like to ask you how you feel about that. (Begin the discussion of your theme with individual jurors, asking them how they feel or what they think about your theme.)
(Fronting the Major Issues of the Case) There are (state the number) central issues on which this case will turn. I'd like to briefly focus on them in order to determine your feelings. (Discuss the focal issues, no more than three.)
(Judging Another - Prosecution Question)
Q: If you are selected as a juror, you will be sitting in judgment of another human being. Is there any reason why this task would be overly difficult for you?
(Juror's Feeling About Being Called for Service)
Q: I'm wondering what it must be like to be in your position. Can you share your feelings about being called down here for jury service?
(Juror's Feeling About Judging Credibility/Believability of Witnesses)
Q: How do you feel about having to judge the truthfulness of witnesses who have been sworn to tell the truth?
Q: Have you (any of you) been in situations where you had to listen to conflicting stories and decide which one to believe?
Q: How would you describe yourself? ["Tell me a little bit about yourself." Let the juror pick what s/he feels is important, and pose appropriate follow-up questions that are relevant to your case or client.]
(Responsibility for Accused Will Flow from Counsel to Jurors)
Q: Right now, I am responsible for acting on behalf of (name the defendant) so that he will have his fair day in court. And, if you are chosen as a juror, you'll share that duty with me for awhile. But at end of the courtroom part of this case, my role changes. I will have to step aside and give (name the defendant) into your hands as you go back to deliberate. Will you be comfortable with that responsibility?
(Presumption of Innocence and Burden of Proving Each Element of Offense Beyond a Reasonable Doubt)
Q: Let's talk about two overarching rules of law that apply in every court in our country. I'm referring to the laws that says, first, the accused is presumed to be innocent of the offense charged and, second, no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. How do you feel about each of these two laws?
What are the elements in this case that (name the defendant) is presumed to be innocent of? (Answer your rhetorical question by discussing the elements of the offense. In every offense, other than strict liability crimes, there will be a state or mind or culpable mental state element and a conduct element; the state of mind element might include intent, knowledge, recklessness, criminal negligence; conduct may include acts, omissions, and possession; in result-defined offenses there will be causation and result elements; there may also be an element known as attendant circumstance.)
(Discuss Applicable Law)
Q: As jurors , do you understand that your job is to determine the facts and then to apply the law to the facts as you've found them?
Q: At this point, you are not required to know all the law that may apply to this case. At the end of this case, right before (or after, depending on the jurisdiction) the final argument of the lawyers, His/Her Honor Judge (name the judge) will give you some specific instructions as to the relevant law of this jurisdiction. Your job in deciding this case, is to apply the law the judge gives you to the facts as you find them to be. The law comes from the judge in a set of instructions to the jury and not from us lawyers. But if I am right, the judge is going to tell you at the end of this case (indicate exactly what you anticipate the relevant instruction will be). I need to know how you feel about that law and whether it is acceptable to you. If, after hearing all the evidence, you felt that this law applied to the facts of this case you agree that you would follow that law and be guided it in arriving at a verdict?
Q: If the judge gave you an instruction about the law of (indicate the subject) and you personally did not agree with that law, what influence would that have on your ability to follow the law? Would you follow a law that you personally don't believe in and disregard your own feelings or would your personal disagreement with the law make that difficult?
(Series of Very Specific Questions that Let You Know Some Intimacies re the Prospective Juror)
Q: How would those who know you describe you?
Q: What do people notice about you within the first hour of meeting you?
Q: Where did you grow up?
Q: If you could live anywhere, where would you live?
Q: If you could go to dinner with any famous person, who would it be?
Q: If you could go back in time, what era would you choose?
Q: If you could be an animal, which one would you be?
Q: If you could eliminate one disease (or one crime) from the face of the earth, what would it be?
Q: If you were a comic book character, what super power would you like to have?
Q: If you could bring back any deceased musician for one concert, who would it be?
Q: Do you have any pets?
Q: Do you have a nickname?
Q: Do you consider yourself open-minded? Rate yourself on a scale of 1 to 10, 10 being the most open-minded.
Q: What is your favorite place to vacation?
Q: What is your (specify other revealing favorites, e.g., car, TV program, book, movie, writer, cartoon or comic book character, web site, restaurant, dessert, snack food, ice cream flavor, color, type of music, musical band or group, Beatle - John, Paul, George, or Ringo, beverage, item of clothing, season, sports team, day of the week, president, time of day, mode of transportation, vacation, pizza topping, holiday, brand of toothpaste, facial feature, etc.)
Q: Are you a competitive person?
Q: What is one of your favorite activities on Saturday night?
Q: Which of the five senses - sight, hearing, smell, touch or taste - would you least want to lose?
Q: When you are bored, what do you do to stop the boredom?
Q: Do you have any superstitions?
Q: Do you believe in fate?
Q: Do you believe in revenge?
Q: Tell me about the person who most influenced your life?
Q: When you are in the car, do you listen to music or radio talk shows?
Q: When you are alone, do you ever talk to yourself out loud? What do you talk about?
Q: How important is physical fitness in your life?
Q: Would you characterize your self as a morning person or a night owl?
Q: Do you prefer Letterman or Leno or Nightline?
Q: Would you describe yourself as a leader or a follower?
Q: Do you prefer coffee or tea, sunrise or sunset/ paper or plastic?
Q: Have you ever participated in a protest? What were you protesting?
Q: What is your preferred method of communicating with someone who isn't in your presence - phone, email, or instant messaging?
Q: Do you screen your phone calls?
Q: Have you ever had a collection? Of what?
Q: Who is your favorite musician?
Q: Have you ever talked yourself out of speeding ticket? Do you remember what you said?
Q: Does your car have any bumper stickers? What do they say? ["My child was inmate of the month at the Wood County jail," would be a good answer for the defense.]
Q: Do you have any tattoos or piercings? Thinking about getting any?
Q: What stresses you out?
Q: Have you ever baited a fishing hook?
Q: When you are lost, do you ask for directions or do you find your way out by using a map?
Q: Would you describe your social life? Party person or enjoy the peace and quiet of home?
Q: What's your favorite outdoor activity?
Q: What's your favorite sport to play (or watch)?
Q: How important is family to your?
(Feelings re Polarized Positions - "Some people think..." vs. "Other people think..." Stem Questions)
Q: Some people think (state the polar negative of the position that is favorable to your ideal, e.g., that a person should always retreat before using deadly force to defend him or herself if there is a safe avenue of retreat open to him or her and he or she knows it is available). Other people think (state the polar opposite position, the one that is favorable to your case, e.g., that a person who is unlawfully attacked with deadly force by an aggressor should have the individual choice either to retreat or to stand his or her ground and defend him or herself with deadly force against the unlawful attack). How do you feel?
(Permissible "Put Yourself in the Defendant's Shoes" Questions)
Q: If you were accused of a crime where your liberty and your future were on the line, would you want to know something about the men and women who were going to decide your fate?
Q: What would you want to know about those people who had your future in their hands?
Q: Would you want the people on your jury to be the sort of folks who would give you a fair shake?
Q: Tell me a little about the neighborhood you live in.
Q: Tell me about crime in your neighborhood.
Q: What racial groups live in your neighborhood?
Q: What type of work do you do?
Q: Have you had any other occupations?
Q: Do you supervise other people? How many" How do you feel about supervising other people?
Q: Does anyone have current work related projects that are going to occupy your mind to the extent that you wouldn't be able to concentrate on the evidence that will be presented in this trial?
Q: Does your spouse work outside the home?
Q: What type of work does your spouse do?
Q: Does s/he supervise other people?
Q: What race is your spouse?
(Membership and Activities in Organizations)
Q: What organizations or activities do you participate actively in? (Examples of particular relevance might include Mothers Against Drunk Drivers, Parents of Murdered Children, the 100 Club.)
Q: Do ( any of you or how many of you) you do any volunteer work?
Q: Have your ever called in to a radio talk-show or written a letter to the editor?
Q: Do any of you blog? (I don't need to tell you how revealing an affirmative answer to this could be.)
Q: Is anyone (Are any of you or how many of you are) either presently or previously a member of the armed forces of the United States or the reserve?
Q: When, where, enlisted, drafted?
(Exposure to Media)
Q: How much TV do you watch? What are your favorite shows?
Q: Do you like to read? What type of reading do you like?
Q: Do you subscribe to any magazines? Which ones?
Q: Before coming to court today, have you heard anything about this case?
Q: (If a juror as been exposed to publicity negative to the defendant, prosecutors may ask a question similar to the following.) Now you understand that the law says that a juror cannot consider anything other than the evidence that comes out here in court from the witness stand. You cannot consider what you might have read or heard about the case. When you are sworn as a juror, you have to take an oath that you will consider only the law and evidence in arriving at your verdict. I need to know if you can accept and abide by (follow) such an oath?
(CSI Effect) (1 - prosecutor's view ), (2- New Republic), (3 - article), (4 - article), (5 - 38pp. research)
Q: Does anyone watch the crime scene investigation shows like CSI, Forensic Files, or Cold Case?
Q: How often do you watch?
Q: What's you favorite show?
Q: Most of these shows claim to be able to solve crimes using scientific evidence. How do you feels about how accurately these shows depict what happens in the real world of police work?
Q: What do you think about whether or not there is forensic evidence at every crime scene?
Q: Do you think there are some cases where there is simply no forensic evidence?
Q: Do you think it's possible to prove a criminal case without presenting any scientific evidence?
Q: Does anyone ( Do any of you) have any difficulty seeing or hearing?
Q: Does anyone require frequent medication or medical care? If so, just raise your hand and we can discuss this privately at the judge's bench.
Q: Does anyone have any heath issue or health problem that might interfere with serving on a jury? Again, we can take it up privately at the judge's bench.
Q: Does anyone have a religious belief or religious affiliation that might interfere with sitting in judgment of another human being?
(Connections to Legal System, Legal Training, Law Enforcement)
Q: Has anyone or a member of your family ever studied law or worked in a lawyer's office?
Q: Have any of you or anyone close to you ever been connected with a law enforcement agency, including the district/states attorney's office, police, sheriff's department, constable's office, F.B.I., Treasury Department, the ATF, or the IRS - either as an agent, secretary, consultant, maintenance worker, or any other position?
Q: Have any of you or your spouse ever applied for a job with a law enforcement agency?
Q: Have any of you ever worked in a job where you were involved in investigations of any sort?
Q: What sort of effort would you expect the police to make in investigating a crime?
Q: Do you understand that jurors are not permitted to personally conduct their own investigation of the case?
(Exposure to Courtroom)
Q:Have you (How many of you have) ever been in a courtroom before?
(Victim of Crime, Litigant or Witness)
Q: Have any of you or any member of your family ever been the victim of a crime?
Q: Have any of you (How many of you have) ever been a witness in a criminal/civil case?
Q: Have you ever been sued or sued someone else in court?
Q: Does anyone have any legal action presently pending in a court? In other words, is anyone currently involved in a lawsuit either as a complainant, plaintiff or defendant?
Q: Without naming names, have you ever known anyone who has a serious problem with drug use?
(Negative Experiences with Legal System - Arrested or Charged)
Q: Have you or a loved one ever been arrested and taken into custody by any law enforcement agency?
Q: Have you or a loved one ever been charged with a crime other than minor traffic offenses?
Q: Do you personally know anyone who has been incarcerated in the penitentiary?
Q: Can you think back and remember a time when you were falsely accused of doing something wrong?
Q: (If so) Did you think that you had to prove your innocence?
Q: (If so) Did you think that was fair?
(Feelings re Burden of Proof)
Q: Some people say that if the police and the prosecutor say a person is guilty, he must be guilty. What do you think about that?
Q: Should the prosecution have to prove the accused person guilty or should the person accused of crime have to prove himself innocent?
Q: (On the burden of proof issue, prosecutors may say something like the following.) The judge is going to tell you that the burden of proving the defendant guilty is on us. There's a legal presumption in the innocence of all defendants when they go to trial. You've probably heard it: " A defendant person is presumed innocent until his guilt is proved at trial. The law doesn't say that defendants are innocent. It simply says that they are presumed innocent until proven guilty. We gladly accept the burden of proving guilt. Here's what I need to know: If we present evidence which proves to you beyond a reasonable doubt that the defendant did the crime he is charged with, will you find him guilty?
(Feelings re Race and Ethnicity)
Q: Do you believe that the crime rate among blacks (or Hispanics. etc.) is higher than the rate among other racial groups?
Q: What racial group do you believe is responsible for committing most of the crime in our county?
Q: Do you think there will ever come a time in this country when race will have no more significance than the color of a person's eyes?
Q: Have you ever had an unfortunate experience with a black (or Hispanic, etc.) person?
Q: When was the last time that you had a black (or Hispanic, etc.) person in your home as a social guest?
Q: What contact do you have with black (or Hispanic, etc.) persons?
Q: Have you or anyone in your family ever been "labeled" in an unpopular way?
(Relationship with Parties, Witnesses, and Legal Officers)
Q: Are any of you related to or do you know personally any of the following: (Introduce the witnesses, e.g. " The prosecution's witnesses are (name them); will these witnesses please rise so that all the jurors may see you. Do any of you know these witnesses?") (Introduce yourself, e.g., "My name is (state your name). I have been a lawyer here in town for (state the time). Does any one know me?" and the opposing lawyers,.e.g., "The (prosecution/defense) in this case is represented by (state the names of opposing counsel). Do any of you know any of these lawyers or their firm (name the firm) or have any of you had dealing with that firm or any of its members?")
(Prior Acquaintance with Other Prospective Jurors)
Q: Do any of you know anyone else on this panel? By that I mean, did you know anyone else in this group of potential jurors before today?
(Prior Jury Service) [Note: some lawyers believe that the more criminal cases a juror has been on, the better prosecution juror s/he will be, i.e., s/he he has heard the boilerplate defense spiel a number of times and has probably been educated/lectured by the prosecutor after the case as to the anti-defense information that could not be placed in evidence because of rules of court.]
Q: Has anyone ever served on a grand jury? [You may want to question the prospective juror with grand jury experience in order to bring out the fact that the grand jury hears only one side of the case, and that is from the prosecutor. There are other significant differences between grand jury and petit (trial) jury service that you want the panel to understand: the grand jury prosecutor typically tells the grand jury what the prosecution claims the accused has done; the prosecutor orally summarizes what s/he claims the evidence will be; the prosecutor decides how much of the story to tell and how to describe it; the entire presentation of a typical case is done in a few minutes; the grand jury typically takes the prosecutor's word and does not examine everything in the prosecutor's file; the grand jury typically decides whether to indict based on what the prosecutor says happened; the prosecutor is not a witness to the alleged offense; there are generally no live actual fact witnesses in the grand jury room testifying under oath in support of what the prosecutor says; the grand jury has the power to call live witnesses but typically does not do so on its own initiative; if live witnesses do testify, it is typically because the prosecutor has asked the grand jurors to issue a subpoena for the live witness; the accused is not allowed to be present during the prosecutor's presentation; the accused's lawyer is not allowed to be present or to question or cross-examine any live witnesses that the prosecutor might produce; grand jurors are allowed to ask questions of the prosecutor and the witnesses; the same prosecutor presents many cases to the grand jury; the grand jurors are free to talk with the prosecutor, to ask questions of the prosecutor and to engage in friendly conversation with the prosecutor; the prosecutor typically makes an effort to see that the grand jurors are comfortable; the job of the grand jury is to determine only whether there is probable cause to issue an indictment and not to determine if the accused is actually guilty of the offense; the grand jurors do not use the standard of proof of guilt beyond any and all reasonable doubt; the grand jurors are not exposed to a defense attorney explaining to them all of the legal justifications and/or legal excuses for otherwise criminal conduct, such as, mistake of fact, mistake of law, duress, entrapment, defense of self, defense of a third party, defense of property, consent, insanity and/or necessity; and, the substance of the grand jury proceedings are kept secret from the accused and the general public but, except for the deliberations, are available to and known by the prosecutor.]
Q: Are there any of you who have been summoned for jury duty and, after the lawyers talked to you, excused from jury service; in other words, called for service but not selected to be on the particular jury?
Q: Who has served on a jury? Criminal or civil case? Without telling me what the verdict was, were you able to arrive at a verdict? [What verdict did you reach during your prior jury service? - This inquiry on voir dire is discretionary with the court in Texas. See Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013)]
Q: Were you the foreperson of that jury?
Q: After the verdict, did anyone come and talk with you? Did you talk with either of the lawyers? Did the judge talk with you? Did you feel comfortable after you were talked to?
Q: How did you feel about the experience of serving on a jury?
Q: Was there anything in your previous jury service that was disturbing, troubling, or upsetting
(Feelings re Prior Convictions of the Defendant or a Witness)
Q: If at one time in the past a person was convicted of a crime, some people might think that once a person has been convicted, he could never be believed again? How do you feel about that?
Q: How would you feel about convicting an innocent person just because he had been convicted of a crime in the past?
Q: Should a person who has committed a crime in the past be entitled to less rights than any other person who is accused of a crime?
Q: What would be your impression of a person accused of crime who didn't testify in his own defense?
Q: Can you think of any reason why a person who is accused of a crime wouldn't want to testify other than the fact that he might be guilty?
(Feelings re Credibility of Witness, e.g. Police, Complainant, Defendant)
Q: Do you understand that a police officer witness (or the complainant) is not entitled to be believed any more than any other witness just because s/he is a police officer (or a complainant). [Prosecution: If the defendant chooses to testify, do you understand that s/he is not entitled to be believed any more than any other witness just because s/he is the defendant?]
Q: In taking the stand, a police officer (or the complainant or the defendant) will have to take an oath like every other witness who testifies. Is there anyone who believes that when a police officer (complainant, defendant) takes the witness stand and swears to tell the truth that it automatically means that s/he is going to tell the truth just because s/he is a police officer (complainant, defendant)?
Q: Is there anyone who believes that a police officer"s (complainant's, defendant's) testimony should be given any more weight or credibility just because the witness is a police officer (complainant, defendant)?
(Feelings re Defense Failure to Call Witnesses)
Q: How would you feel if the defendant didn't call any witnesses at all?
Q: Would this make you believe that the defendant was guilty?
Q: What if the defense lawyer didn't even question any of the prosecution witnesses?
Q: Would you expect the defense to prove the prosecution wrong?
Q: What affect will it have on you if the prosecution (or defense) has more witnesses than we do?
(Feelings re Circumstantial Evidence)
Q: When we talk about "circumstantial evidence," what does that phrase mean to you?
Q: Direct evidence is evidence that proves a fact directly without you having to draw any inferences. Circumstantial evidence is evidence that allows you to draw an inference of the existence of a fact from proof of a different fact. That may sound like jabberwocky or legal mumbo-jumbo, but let me give you an example. [Note: You may give one of the bromide examples of rain or snow; personally, I like using an example of circumstantial evidence that every juror would have recently experienced, e.g., " Most of us, at one time or another, have been in the yard or at the mailbox when the postal carrier arrives with the mail. On that day, you actually see the carrier deliver the mail into your mailbox. But there are some times when you are not home when the mail is delivered. You just find your mail in the box when you come home. When you left, the mailbox was empty. When you get home, it is full of mail. When you actually see the carrier put the mail into your mailbox - that is direct evidence that the postman delivered that mail. But when you return home to find the mail in a mailbox that was empty when you left, that is circumstantial evidence that the postman delivered your mail. You didn't see the mail delivered by the carrier, but you draw a logical inference that the carrier delivered your mail from the circumstantial evidence that its in your mailbox. You draw the logical inference of one fact, i.e., that the carrier delivered your mail from proof of another fact, i.e., the fact that you found mail in the mailbox. We use circumstantial evidence like that every day. Think about it tonight when you get home and have mail in the box. You have a pretty good idea how it got there, even though you weren't there when it arrived.Another good example - remember the excitement that Robinson Crusoe felt in seeing the human foot print on the beach? Why was he excited? It wasn't just because he found a footprint in the sand. It was because that footprint was circumstantial evidence that there was another human being on the island. Proof of one fact - the footprint - allowed him to logically infer another fact - someone left that footprint."] Having said that, is there anyone that has a problem with convicting a defendant based on evidence that is circumstantial, so long as that circumstantial evidence proves guilt beyond a reasonable doubt?
(Feelings re Possibility of "Wrong Man")
Q: How often do you think it happens that the police and prosecutor have the wrong man?
Q: What about the possibility that an eyewitness might make a mistake in identifying the wrong man as the perpetrator of a crime? (1) (Feeling re Defendant's Innocence and Reasonable Doubt (1) as Trial Begins)
Q: What is your feeling right now about whether (name the accused) is innocent?
Q: How do you feel about the fact that in order for the prosecutor to win her case, she has to persuade you beyond a reasonable doubt that (name the accused) committed this alleged crime?
Q: If you find yourself in a position where the believable credible evidence points toward guilt and also points toward innocence, who would get the benefit of the doubt?
Q: (Prosecution question) If the defense puts on evidence that conflicts with the evidence presented by the prosecution, is there anyone who believes that the mere fact the the evidence is conflicting creates a reasonable doubt without having to evaluate the credibility of the witnesses and/or the weight of the evidence? In other words, I am asking if there is anyone who believes that any conflict in the evidence creates a reasonable doubt?
(Feelings re Law and Order)
Q: What do you think about the idea of law and order?
Q: How necessary is it to a civilized society?
(Rating Feelings on a Scale)
Q: On a scale of 1 through 5, (display a board or screen with a five to seven point scale, e.g., 1- absolutely disagree, 2- strongly disagree, 3- disagree, 4- no feeling whatsoever, 5- agree, 6- strongly agree, 7-absolutely agree) how do you feel about the following statement: (insert the statement about which you wish juror feelings)? [Note: It will help you keep track of the whole panel if each juror has a laminated card with his/her juror number that can be held up when you ask respectively , "How many people absolutely disagree (strongly agree, agree, have no feeling whatsoever, ...)?]
(Connection with Rehabilitation Programs - Prosecution Question)
Q: Have any of you or someone in your family ever been associated with a program that was devoted to rehabilitation of persons convicted of crime?
(When Punishment Is a Matter for the Judge - Prosecution Question) If you are chosen as a juror and you and your fellow jurors convict the defendant, you will have no say in the sentencing part of the trial. Would that fact have any influence on your ability to be a fair and impartial juror on the guilt/innocence part of the trial.
(Reservations re Serving as a Juror in the Case)
Q: Is there anyone who has any reservations or problems whatsoever, no matter how small they may seem, with sitting as a juror in this case? If so, now is the time to talk about them, and we can do that in private up at the judge's bench if you'd like.
Q: Taking the oath as a juror is kind of like taking vows when you get married. Suppose you are getting married and the preacher asked your intended if he or she promised to love, honor and protect you. If your future spouse answered, "I guess so, " or "Maybe, " you probably shouldn't marry that person. The person may be a good person but just not for that marriage. Why? Because that person is hesitant about being able to commit themselves to the marriage. The same is true with being a juror. There are some cases where you just can't make the promise to be completely impartial. You are all good people, but that doesn't mean you are a good juror for this case. If you have any inclination that would cause you at this point to lean toward the prosecution, you wouldn't be a good juror for this case. And that's because you wouldn't be able in good faith to take the vow of 100% impartiality. If you are hesitant about your ability to look at this with total impartiality, now is the time to say so. You don't want to get married with the wrong frame of mind, and you don't want to sit in judgment of your fellow man with the wrong frame of mind. At this point, do you have a smidgeon of bad feeling against (name the accused)?
Q: Is there anyone who feels now that s/he shouldn't serve as a juror in this case?
Q: Do you want to serve as a juror in this case?
Q: Is there a question that either myself or the attorney on the other side should have asked you that we didn't?
Q: Is there something about you that we should know regarding whether you should serve on the jury in this case?
Q: Is there any reason that we haven't covered in this voir dire questioning that might keep you from being a fair and impartial juror in this case?
(Pause. Look at all the jurors with a Z-glance and say the following.) Ladies and gentlemen, I appreciate your honesty, your candor, and your patience. We look forward to presenting our case to you. Thank you, Your Honor.
A Novel Idea: Opening Statement Before Jury Selection
In most states, statutes or rules governing the order of trial provide that opening statements follow jury selection, e.g., Art. 36.01 Tex.C.C.P. In at least one state, Idaho, there is provision for the parties, with the court's consent, to present brief opening statements to the entire jury panel prior to jury voir dire. If your rules governing the order of trial are not set-in-stone, consider the advantages in asking the trial court to allow you to make an opening statement immediately before the jury selection. At least one federal court has allowed this practice.
Another Novel Idea: Allowing Jurors to Ask Questions of Witnesses Through the Court
A substantial number of states are moving toward allowing jurors to ask questions of witnesses through the court. A strong argument can be made that this does not violate a defendant's right to a fair trial (1). If you are in one of these jurisdictions, make sure during voir dire questioning that the jurors understand this power. For a recent case condoning the process see People v.Merklin, 80 P.3d 921 (Colo. App. 2003). Colorado now permits the practice in civil and criminal cases. For additional information, see United States V. Richardson, 233 F.3d 1285 (11th Cir. 2000) for a federal case indicating that all circuits that have considered the practice have affirmed that federal trial judges have discretion to allow it and listing cases from twenty-six states that allow the practice, e.g., Alabama, Arizona, Arkansas, California, Connecticut, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Utah, Virginia, and the District of Columbia. Several states, e.g., Georgia, Minnesota, and Nebraska, disapprove of the practice, and my state - the sovereign State of Texas, which pays its jurors $6 a day for the first day of jury service, considers it reversible error to permit jurors to ask questions. See Morrison v. State, 845 S.W.2d 882 (Tex. Crim. App. 1992). See also 31 A.L.R.3d 872.
Another Novel Idea: Googling, Facebooking, and Twittering the Names of the Prospective Jurors on Social Media
If the trial court will allow you have a copy of the list of prospective jurors early enough, you can find out quite a bit about jurors by Googling, Facebooking and Twittering them. You'll find self-descriptive comments and photos in social-media sites that may give you an insight that a data sheet or court-ordered questionnaire won't. Here's a list of names, Internet addresses, description/focus, and membership numbers of most of the Social Networking Sites (SNS). The ABA has set some reasonable boundaries on lawyer tracking of jurors on social media. [Tip: Also, with only an address you can find free online Internet information on home location and value from real estate companies such as Zillow. Realtor, Trulia. Also, local property appraisal records (1) (Here's mine in Harris County, Texas.) showing home values for purposes of taxation are typically open and searchable on the Internet. See above.]
Two Recent Trends: 1- Sealing the Names of Jurors from Public Scrutiny
2- Preventing Jurors from Using the Internet to Investigate the Case
1. Fear of retaliation by a convicted defendant could have a deleterious influence on the deliberative process. Although the parties are typically permitted to know the identity of jurors, by court rule or statute, e.g., California, jurors in some jurisdictions are now assigned numbers and records of their identity are seal from public scrutiny. The jurors' right to privacy is more compelling in cases where there is a substantial basis for believing that juror identity needs protection. See United States v. Thomas, 757 F.2d 1359 (2nd Cir. 1985); United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979). (1 - a note on anonymous juries), (2), (3 - a sample court order from my jurisdiction, TX, preventing the media from disclosure of information re jurors) 2. With the growth of the computer literacy in recent years, jurors, hungry for information and armed with their laptops, have increasingly resorted to the Internet in conducting their own private investigations of the case and the people involved in it. Many judges have responded by ordering jurors to refrain from Internet investigations, e.g., "You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the Internet, any Internet service, or any text or instant messaging service, or any Internet chat room, blog, or web site such as Facebook, My Space, LinkedIn, You Tube or Twitter, to communicate about this case or to conduct any research about this case." Read the 59-page Hoffmeister, et al., Google, Gadgets, and Guilt: Juror Misconduct in the Digital Age, 83 U. Colo. L. Rev. 409 (2012). See also (1) (2). Here's a list of names, Internet addresses, description/focus, and membership numbers of most of the Social Networking Sites (SNS). A few cases: United States v. Bristol-Martir, 570 F.3d 29 (1st Cir. 2009);State v. Abdi, 45 A.3d 29 (Vt. 2012); Dimas-Martinez v. State, 385 S.W.3d 238 (Ark 2011); McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim App 2012).
The Care and Feeding of Jurors
Once the jury has been selected and impaneled for the case, make sure that their comfort is considered. Most judges will take pains to make sure that the captivity experience will not be unduly onerous. However, when the jury retires to deliberate, care and feeding should become of great importance to the litigator. To be effective, a captive jury must be provided with good and plentiful food. Don't ever allow a judge to hold a jury past the regular hour for dining in the effort to wring a verdict out of the jurors. Object to such coercive conduct. You don't want your client to be convicted because the jurors have been denied proper sustenance.
Fine Tuning Your Case to Fit Your Audience
After the jurors are selected and seated, you will now know something about every member of this audience that will decide your case. You will certainly want to think about the advisability of making adjustments to your case presentation, i.e., your opening statement, your direct and cross-examination questions, your objections, and your jury argument. + One of the best books on the subject of jury selection is the National Jury Project's Jurywork. Unfortunately, the cost is outrageous. + In some jurisdictions, the personal data questionnaire filled out by prospective jury members contains a query about the juror's religious preference. A person's choice of religious affiliation may provide useful information if you know anything about that religion. The Internet provides a lot of information about various religions (1), (2), (3). + If you are looking for sample voir dire questions, try these sites: (1 - some samples from a federal court), (2 - 31 pages of questions for the prosecution), (3 - +100 questions and an outline of typical voir dire questioning in criminal case), (4 - an exhaustive set of questions and a brief article on voir dire in Texas capital murder cases), (5 - a useful discussion - needful of proofreading -of jury selection in DUI cases by a veteran defender). Notice that the NDAA-APRI provides sample questions for prosecutors in sexual assault (rape) and domestic violence cases; here are some voir dire tips and a very thorough PowerPoint case prep and presentation slideshow (including a discussion of voir dire in cases involving children) for prosecutors in sexual assault cases. + There are quite a few web-based articles concerning jury selection that are worth reading or at least perusing. e.g., (1), (2), (3), (4), (5 - 99 pages re hung juries), (6 - what jurors think about peremptory challenges), (7 - tips and some sample questions; this site has a total of 6 articles re jury selection), (8), (9), (10), (11 - "How to Conduct a Meaningful and Effective 30 Minute Voir Dire"), (12 - This is a brief article by lawyer/professor Michael Tigar, a modern day almost-Clarence Darrow who belies Gerry Spence's characterization of law professors as the "morticians" of the legal profession; if you would like to read Tigar in action, take a look at the transcripts of jury selection in the Terry Nichols Oklahoma City Bombing case.) (13 - Picking a Jury - In most jurisdictions the part about storytelling in voir dire won't float; save it for opening statement.), (14 - ranking jurors), (15), (16 - 76 Tips), (17 - a former juror talks about being a juror and how to get on or off a jury Trial lawyers interested in the view from the venire's perspective should take a look at this.), (18 - very simple PowerPoint on Texas voir dire), (19 - brief list of voir problems), (20 -civil), (21 - civil), (22 - civil - knowing your audience), (23 - role of jury), (24, 25, 26 (NY) - picking a jury), (27 - bibliography), (28 - list of 70+ tips), (29 - the boastful theater guy- video), (30 - a good one on the psychology of voir dire), (31 - article), (32 - defender's blawg), (33 - types of questions ) (34 - body language of prospective jurors) . Find out what the real Clarence Darrow said about "How to Pick A Jury." Read about the trial of John Peter Zenger. You can find many references to jury selection and voir dire by using any of the good search engines, e.g., Google, Yahoo, MSN, Beaucoup, etc., e.g., (1, 2 - anonymous juries), (1 - sequestration), (1 - hung jury), (1 - determining facts), (1 - applying law), (1, 2 - nullification) Decisionquest also has a slough of articles of jury research. You'll also find interesting articles about cutting-edge jury selection issues in the legal periodicals. See the CCJA Bibliography for more guidance in finding numerous non-web resources. You may find some tips and sample voir dire examinations in some of the many books that have been written about jury selection (deselection).
+ For a few helpful motions re jury questionnaires, etc., check this site maintained by capital defenders in the sovereign State of Louisiana. Here are some possible defense questions on the death penalty for the venirepersons in a capital case. Check this site for motions (1) relevant to capital juries. + Jurors may have been indoctrinated before they ever report for service. For example, some United States District Courts provide trial jurors with jury service handbooks (9 page manual), (11 page handbook) and videos. They do the same thing with grand jurors. Many local state jurisdictions provide jurors with handout advice. (1 - a North Carolina "Everything You Wanted to Know About Being A Juror" handbook), (2, 2A- Pennsylvania), (3 - LA, California), (4 - Vermont). Here's a list of numerous states and cities around the country that have juror orientation brochures and videos online and hyperlinks to those videos that will allow you to watch the orientation (1 - AZ), (2 - CA), (3 - FL), (4- GA), (5 - HI), (6- IA), (7 NY), (8 - TX). The practice is not necessarily bad, but it can be unfairly prejudicial if the content of the advice or propaganda is skewed. Check your locality, and view the materials your jurors are being supplied. If the court does not supply the information and it is on the Internet, you can be assured that some of your prospective jurors will have accessed it. and read and/or watched all or part. + Jury (Trial) Consultants: For the well-heeled client, there are a number of people who, for a fee, offer their services as "trial or jury consultants." The fees, e.g., $24,500 for a one day mock trial, $18,000 for a one day focus group, $7500 a day for trial assistance, can seem a bit dear to criminal defense attorneys working on shoestring budgets. The folks who bill themselves as jury consultants cover the gamut from lawyers (1), (2) to psychologists (1) to actors (1). Some trial consultants seem to be helpful, e.g., (1), (2). Some are charlatans.The jury is still out on others. (1 - article) The people selling this service always toot their own horns. Empirical research is hampered because actual juries are off-limits to researchers. (1) [Note: On the strength of this web page, 37 years of conducting mock trials, and a slender tome on jury deselection, I could probably hold myself out as a jury consultant;however, it would be ludicrous to do so. Why? Because I know that I'm no expert in jury deselection and I don't need the argent. But if I advertised, sooner or later some chump would hire me. My point: don't hire any of these folks until you dig deeply into their background and experience.] A trial or jury consultants might help you get an insight as to how your case will play with the use of a mock jury (mini-trial format where the lawyers present a scaled down version of the case in the form of witness vignettes to a group of people from the community with opening and closing statements) or a focus group (1), (2), (3) (a group of people, representing a cross-section of the community, who are gathered together in a more informal classroom form to convey community attitudes about sensitive aspects of the case after hearing lawyer presentations) or a shadow jury (a group of persons who sit in the courtroom each day and provide case progress feedback to the lawyers at the end of the day concerning their reactions to the actual trial). Mock trials and focus groups are conducted sufficiently in advance of trial to permit the trial counsel to craft his/her case with the research results in mind. Several jury consultants have sites that contain free useful articles they have written on the subject of jury selection. (1), (2), (3), (4), (5), (6), (7), (8), (9) If you are interested and your client can afford one of these consultants, you may want to start your inquiry with one of the trial consultant organizations (1). The American Society of Trial Consultants (1) publishes a useful little journal called The Jury Expert; I recommend it for your perusal; the articles are free online; they are short, and some are interesting. [Suggestion: If you represent an indigent in a high stakes case, move the court for funds with which to employ a trial consultant. Here's a rudimentary 2-page sample Motion for a Trial Consultant; you'll have to do sculpting surgery on it. If your client doesn't have the deep pockets necessary to afford a high dollar jury consultant and the judge won't fund the expense, find another struggling defender whose acumen you respect, and team up for jury selection. Agree to ride shotgun for one another during jury selection. Put your sidekick in the jury box to observe and make notes. If you read the copious literature on jury selection and start doing it, there is no reason that you can't do an excellent job of jury picking on a shoestring budget.] + Basic Constitutional Law Re the Right to Trial By Jury Under the Sixth Amendment: Duncan v. Louisiana, 391 U.S. 145 (1968) right to trial by jury; does not apply to petty offenses; DeStefano v. Woods, 392 U.S. 631 (1968) Duncan not retroactive; Baldwin v. New York, 399 U.S. 66 (1970) right to trial by jury applies if maximum permissible punishment exceeds six months; Williams v. Florida, 399 U.S. 78 (1970) six member jury is allowable; Ballew v. Georgia, 435 U.S. 223 (1978) five member jury is unconstitutional; Hildwin v. Florida, 490 U.S. 638 (1989) no right to jury sentencing; Apodaca v. Oregon, 406 U.S. 404 (1972) unanimous verdict not required in state cases; 10-2 verdict upheld, see also Johnson v. Louisiana, 406 U.S. 356 (1972) 9-3 verdict upheld; Burch v. Louisiana, 441 U.S. 130 (1979) six person jury in offense that is not petty must be unanimous; Brown v. Louisiana, 447 U.S. 323 (1980) Burch applied retroactively; Schad v. Arizona, 501 U.S. 624 (1991) when one offense charged two or more different ways, jurors not required to be unanimous on one way; Blanton v. City of Las Vegas, 489 U.S. 538 (1989) first offense DUI (DWI) deemed petty offense under circumstances with no Sixth Amendment right to jury trial; Lewis v. United States, 518 U.S. 322 (1996) prosecution for several offenses each with maximum permissible punishment less than six months does not give right to jury trial even it sentences when stacked or cumulated exceed six months; Apprendi v. New Jersey, 530 U.S. 466 (2000) right to jury trial applies to factors that support a greater sentence than maximum penalty, see , Ring v. Arizona, 536 U.S. 584 (2002) right to jury determination of life death issue in capital case, Blakely v. Washington, 542 U.S.296 (2004) factors supporting enhanced sentence under sentencing guidelines need to be found by a jury, see also United States v. Booker, 543 U.S. 220 (2005); see also Motions. [Comparative Note: Though many of our states, by law or constitutional provision, (Texas does both - Landrian v. State, 268 S.W.3d 532 (Tex. Crim App. 2008); Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011)) require that a verdict of conviction in a criminal trial be unanimous, Canada is the only country in the world that does so.] Peremptory challenges in federal court: civil cases (1) - 3 per side; criminal cases - death penalty case: 20 per side; felony: 6 for prosecution, 10 for defense; misdemeanor: 3 per side. The Texas Constitution requires a unanimous verdict in criminal cases. Art. 35.15 CCP provides the number peremptory challenges in Texas criminal cases. + Unusual Texas Practice - The Jury Shuffle: To my knowledge,Texas, my home state for the school year, is the only state where a "jury shuffle" is permitted. In effect, the jury shuffle procedure allows the lawyers, after getting a quick look at the sequence in which the prospective jurors are seated, to require that the sequence be reordered. Judges don't like jury shuffles. Many defense lawyers and prosecutors like having the right to force a shuffle. Art. 35.11 CCP provides that, upon the demand of the defendant or his attorney or of the prosecutor, the trial court must shuffle the names of a sufficient number of the prospective jurors from the general panel drawn or assigned to the case. The rub is that only one shuffle is allowed. See Chappell v. State, 850 S.W.3d 508 (Tex. Crim. App. 1993). The motion must be presented in a timely manner before the voir dire commences, e.g., in a non-capital case, before the prosecution begins its voir dire but not when the trial court is giving its initial instructions to the jury. See Davis v. State, 782 S.W.2d 211 (Tex. Crim. App. 1989). Failure to shuffle upon request is error, but the error can be harmless. See Ford v. State, 73 S.W.3d 923 (Tex. Crim. App 2002).