The right to trial by jury - the spinal cord of democracy,
the palladium of free government, and the only guarantee to appear
in both the body of the Constitution and the Bill of Rights.
"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 WhiteThe 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."
Thomas Jefferson (1)
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.
INTRODUCTION TO DESELECTING AND SELECTING A JURY
[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) In a typical felony case, you'll be lucky to get 10 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 two of the Supremes, Justices Breyer and Souter, are openly disenchanted with the peremptory challenge system. See Souter's opinion in Miller-El v. Dretke, 544 U.S. 231 (2005) and Breyer's concurring opinion in Rice v. Collins, 546 U.S. 333 (2006). [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.] 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." 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 Court TV were able to broadcast the jury selection process. For privacy reasons, this is the one area of the trial that is never televised. 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 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. 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. Getting back to the example, in a case involving 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
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, e.g. (1). 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.
LOOKING GOOD
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.
VERBAL IMPRESSIONS
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. 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. __ (2008) reversing for a Batson violation.[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.] [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).]
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. 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 prapring, consult this lady lawyer/jury consultant's blawg for free samples of well crafted jury questionnaires from major cases; the samples are lengthy; you'll need to trim 'em down.
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 demographic, attitudinal, and world-view information. In deciding about each question, ask yourself whether and how the answer will help you. Try to have four or five key questions that will provide you with a glimpse into the juror's private belief and attitudinal system.
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. 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. 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.
DOING IT
Listening and observing during opposing counsel's questioning may be more important than talking. Some of the best jury pickers I know depend heavily upon critical listening (1) and observing during the opposition's questioning to make their peremptory strikes. Rather than counting on their own questions to ferret out information, these advocates watch and listen when the other side is talking to the venire. 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. Try to visualize and feel what each prospective juror is feeling.
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). 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 say 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 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.