- Tyler Collins
THE MOST EFFECTIVE VOIR DIRE
The following questioning methods and practices will produce the most useful information about jurors, leading to successful jury de-selection, regardless of the type of case. For more complete information, see “Winning at Jury Selection” by Angela Dodge, Ph.D.
[ ] Do not attempt to “preview” your case in voir dire. There is only one main purpose of voir dire – to find and strike jurors who will see your case in an unfavorable light. Save your preview regarding your story and your themes for the opening statement.
[ ] Use a style for voir dire that is distinctly different from your cross-examination style. Jurors often complain they felt cross-examined during voir dire and this makes them defensive. Smile, be friendly (but not pandering), appear curious and interested.
[ ] Begin with easy questions that require hand-raising only (e.g., “How many of you have
ever . . “). As you ask these initial questions, raise your own hand to indicate how you want them to respond -- this also takes pressure off a sole respondent. Note hand raising for various questions, and follow-up with these jurors when appropriate.
[ ] Follow up hand raising with open-ended questions to elicit more information, such as:
“How do you feel about…?”
“What importance would you give to that?”
“What did you learn or conclude from that experience?
“What types of experiences have you had with …?”
“Can you tell me more about that situation/event?”
“What was your reaction to …..?
“What did you learn or conclude from that experience?
“I see you were shaking your head to [Juror’s] comment. Why is that?”
“Can you give me an example of what you mean?”
“Why do you feel that way?”
“What did you learn from that experience?”
“What advice would you have for others having a similar experience?”
Such open-ended questions that will get jurors talking, not just agreeing with you. Your goal is to learn as much as possible about the jurors in the time you have. Your time to talk comes later.
[ ] Avoid beginning questions with, “Wouldn’t you agree that . . .”. or “Has anyone here today ever . . ..” These questions can be leading, and do not indicate how the juror is to respond – nodding his head? raising her hand? Begin questions with “How many of you … “ and then hold up your own hand to indicate how a juror might respond.
[ ] Seek out potential bias with subtlety. Try this approach: “This is a case about ______. How many of you feel some of your own experiences may be too close to the issues in this case?” Then follow up with, “How would you go about setting those experiences or attitudes aside in order to judge this case on its merits only?”
[ ] Treat every juror with respect. Use their names (or numbers), don’t interrupt their answers, look them in the eyes and don’t write down their responses while they speak. Give every juror your full attention. Smile and thank them for being honest, candid, or open with you.
[ ] If you need to record responses, have someone in court to assist you. Your time is best spent listening and following up on juror responses, not writing.
[ ] Don’t apologize to jurors for asking personal questions. Jurors expect to be queried about life experiences and attitudes related to the case. If the questions you must ask are too personal (e.g., sexual experiences, abortion, rape, financial problems, etc.), use a Special Juror Questionnaire to protect privacy.
[ ] Stick to your script. Ask the questions you have prepared in order to learn what you need to know to make informed strikes. Everything else is a waste of time – yours and theirs.
[ ] Develop and use a High Risk Juror Profile so you know in advance which jurors are likely to be biased against your case or to view your case unfavorably.
[ ] Tell jurors you will use your time to listen to them. Ask questions only to get jurors talking. Avoid your need to talk about your case in an effort to “get the jump” on the opposition.
[ ] Don’t ask jurors about bias, prejudice, or the ability to be fair. Most people are unaware of their biases or most likely to give a socially desirable answer, not an honest one.
[ ] Getting “pledges” and promises to be fair from jurors at this stage is a waste of time. Asking jurors if they can suspend judgment until they have heard all the evidence is insulting to them. If you need to remind jurors of this, save it for the end of Opening Statement.
[ ] “Poisoning of the well” rarely occurs. Don’t be afraid to ask questions just because you don’t want jurors making negative statements about your client. Such statements will have an impact only if the person making them remains on the jury. Better to find this out in voir dire so you can strike them.
[ ] When a juror expresses an opinion or relates an experience that could taint other jurors, don’t panic. Jurors are measuring your response to such statements, so react positively and don’t become defensive. You can:
- Immediately thank the juror for being candid. Say, “I’m sorry to hear you had that experience, but I appreciate your honesty and candor.” This signals jurors that you are genuinely seeking their honest opinions, regardless of whether they are favorable or unfavorable to your case. Positive reinforcement for honesty and candor also encourages others to confess bias.
- Seek an opposing opinion, in order to neutralize. Ask, “Has anyone had a different experience?” Or “Who has a somewhat different opinion on that issue?”
- Make a sympathetic comment such as, “I’m sorry that happened to you. I would hope that such an experience happens rarely.”
[ ] Make certain you talk with every juror. The most dangerous juror is the person about whom you know nothing. On the other hand, don’t waste time talking to jurors unlikely ever to be seated (i.e., too deep in the venire).
[ ] Avoid eliciting positive statements or “endorsements” from jurors you discover are likely to favor your case. You may as well paint a target on those jurors to identify them for opposing counsel to strike.
[ ] If possible and if the opportunity arises, integrate themes into voir dire, for example: “How many of you think a doctor can follow the standard of care and still have a bad outcome?” or “How many of you believe that people can be convicted even though they are innocent?” or “How many of you believe that circumstantial evidence is not as good as direct evidence of guilt?”
[ ] If opposing counsel starts to explain their case, object. Objections during voir dire throw counsel off, and send a message to jurors that you don’t like the unfair advantage either. Jurors will appreciate you for that.
[ ] If the judge excuses jurors for hardship early in the voir dire process, this is very helpful to narrow the range of potential jurors. This enables you to determine the “depth of inquiry” necessary to make effective strikes. If this does not occur, you may need to re-count the depth of inquiry for focusing your voir dire.
[ ] Use your time efficiently. Determine the venire depth needed and focus on those jurors (e.g., seating jurors = 14, four strikes per side = 8, potential cause strikes = 4. So, 14 + 8 + 4 = 26, so no need to question jurors beyond about #30). It is a waste of time to question jurors who have limited or no chance of ever being seated in the jury box.
[ ] Avoid pandering to potential jurors by sharing similar personal experiences. Other potential jurors recognize this for what it is – attempts to foster your likeability and acceptance.