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Voir Dire


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Background

According to the United States Constitution, if you are charged with a crime punishable by incarceration, you likely have a right to a trial by jury. Moreover, defendants have a right to a jury that is impartial or free from prejudice against the accused. There must, however, be a process for discerning bias, and the process common law courts use is known as "voir dire." In essence, voir dire is a method of jury selection wherein the judge and/or the attorneys ask prospective jurors questions in order to ferret out bias.

In some states and most federal courts, the judge conducts voir dire. This article is not concerned with voir dire in these jurisdictions. Rather, this article will focus on attorney-conducted voir dire.

Voir Dire as an Advocacy Tool

To some, voir dire is a mere formality; a process meant to uncover the most basic prejudice. When approached in this manner, voir dire seems perfunctory, a list of closed-ended questions that elicit predictable answers. For example, an attorney conducting voir dire as a formality will ask questions on familiar subject matter, such as whether the members of the pool previously served on a jury, do they know the parties involved, or have they heard anything about the case. Moreover, attorneys using this approach frequently phrase questions in a way that discourages members of the jury pool from sharing opinions that may be controversial, or that may result in them being struck from the panel. An example of such a question might come as a follow-up: "Mr. Smith, you said that your father was a police detective for 30 years that would not cause you to be impartial, would it?" By using a closed-ended, leading question, the attorney asks for a yes or no answer, and learns little about what may be the source of bias against his client.

Effective voir dire involves much broader goals. To understand why, it is important to examine the procedural components of voir dire. Typically, after the court convenes, the clerk calls the jury pool into the courtroom, swears them in, and calls the roll of jurors. The judge then introduces himself and offers preliminary instructions about the jury process, the purpose of voir dire, the nature of the case, and some other issues. He then asks a series of basic questions of the jury and introduces counsel. After doing so, he turns the process over to the prosecutor, who has an opportunity to ask questions, typically from the "well" (the area between counsel's table, the bench, and the jury). Once the prosecutor is finished, defense counsel takes a turn. By the time voir dire concludes, the judge, prosecutor, defense counsel and jury will have all been involved in what at its most effective amounts to a dialogue, or a conversation.

By viewing voir dire as a conversation, the three goals that flow from it become more obvious. First, as with any conversation, defense counsel must aim to build a rapport with the jurors in order to gain their trust and foster an open exchange of information. This leads naturally to the second goal: gathering information about the jury to enable counsel's effective use of strikes both peremptory strikes and strikes for cause. Finally, counsel must use voir dire to advance both the theory and theme of the defense case.

Goals of Voir Dire

Building Rapport

As noted above, the first goal of voir dire is to build rapport with the jury. This means fostering an environment wherein jurors feel comfortable sharing. It requires being an attentive, active listener, in addition to the deliberate use of conversational techniques that employ empathy, respect, and genuineness. These techniques include reflection, clarification, and self-disclosure:

  • Reflection: reflecting the jurors opinion back to him, or out toward the group. May consist of summarizing a response a juror gives to a question, paraphrasing it and shaping it into something the entire panel can better understand, looping a response into a follow-up question, or revisiting an opinion a juror offered earlier during voir dire (e.g. "Mr. Smith mentioned that he believes police officers always tell the truth; does anyone agree or disagree with this statement?").
  • Clarification: clarifying an answer offered by a juror ("I'm not sure I understand, are you saying that . . .").
  • Self-disclosure involves counsel sharing some information about him or herself in order to "lead by example" (e.g. "everyone, including me, has some type of bias or prejudice", "if I were in your position").

The idea behind all of these techniques is to show respect and empathy toward all jurors, even those who express opinions that render them unfit for jury service. In most circumstances, counsel should try to use those "negative" opinions to their advantage, by showing the juror respect and acknowledging the opinion as a valid opinion, then finding out who else on the panel shares that opinion. By using negative answers to one's advantage and turning them into questions for the entire panel, counsel can turn one strike for cause into multiple strikes for cause.

In terms of form, most all questions during voir dire should be open-ended questions, so as to avoid simple "yes or no" answers. Counsel should also avoid debating with jurors or taking a confrontational stance toward them.

Garnering Information for Effective Use of Strikes

The second goal of voir dire flows logically from the first: counsel should garner information for effective use of strikes. A "strike" is a directive that a certain juror shall not sit on a particular jury. Strikes come in two varieties: strikes for cause and peremptory strikes.

  • Strikes for Cause - A strike for cause comes about when a juror expresses an opinion or has some condition that makes him unfit as a matter of law to sit as a juror in the case. Examples of grounds for strikes for cause would be a relationship to the parties, having formed an opinion about the defendant's guilt or innocence, or feelings or beliefs that would affect the juror's ability to judge the facts in an impartial manner (e.g. an individual who expresses a religious objection to sitting in judgment of another person, or a juror in a drug case who does not believe that drugs should be illegal and will refuse to impose punishment). In addition, a juror might be struck for medical reasons that affect his or her ability to sit through or listen to the presentation of the case. There is no limit on strikes for cause.
  • Peremptory Strikes - Peremptory strikes, on the other hand, are left to the discretion of the parties. These strikes may be exercised in whatever manner the parties see fit. The only exceptions to this rule are race and gender according to Batson v. Kentucky, a United States Supreme Court case, the government may not strike prospective jury members on account of race or gender. Apart from this restriction, counsel may strike any prospective juror for any reason. Peremptory strikes are always limited in number, a number that varies between jurisdictions.

Using Strikes

Strategically, it is in the Defendant's interest to strike unfavorable jurors from the panel. However, as noted above, the Defendant may use peremptory strikes against only a handful of potential jurors often as few as three or four. Because strikes for cause are unlimited, it stands to reason that counsel should aim to strike for cause as many jurors as possible. There are multiple routes for accomplishing this task, but one of the most effective is to focus on subject matter that, assuming it is relevant to the case at bar, is also polarizing, or tends to elicit controversial opinions. Examples include police officer testimony (whether it should be credited above layperson testimony), a defendant's choice not to testify at his own trial, whether they equate an arrest with guilt, attitudes toward the burden of proving a case beyond a reasonable doubt, and attitudes toward specific hotbutton issues implicated by the case to be tried (e.g. drug use, sexual abuse, disrespect/aggression toward law enforcement, obscenity, etc). If for example a juror stated that he assumes guilt from the fact a person was arrested, counsel would want to reflect or clarify his answer, then open it up to the remainder of the panel for discussion. In doing so, hopefully others who share that opinion would speak up, and counsel would have grounds to move to strike these unfavorable jurors for cause.

Rather then striking jurors, the court will frequently attempt to rehabilitate the individual. This is accomplished by determining whether the juror is able to set their opinion aside and follow the law. Often, the judge or the prosecutor will do so by asking a series of leading questions. Where this occurs, counsel should consider objecting. Counsel should also anticipate attempts to rehabilitate jurors, and ask questions in a manner that renders attempts to rehabilitate ineffectual.

Communicate the Defense Theory and Theme

The last goal of voir dire is to advance the theory and theme of the defense. Theory is the legal explanation of why the defendant did not commit the crime. For example, in a drug possession case involving joint possession by three parties, a theory of the defense might be that the drugs belonged to the co-defendant alone. On the other hand, the theme of the case is the "sales pitch"; the words or phrases that explain or characterize the theory in a way that is memorable. Using the same drug case as an example, a theme might be "close enough for government work" or "one out of three might be good in baseball, but it's not enough for the law."

Although voir dire is not a time to be delivering arguments, an effective advocate can introduce his defense, or hint at key aspects of it within the constructs of the dialogue. For example, before asking a series of questions, the advocate might preface, or "headline" the questions by stating, "the case today is about drug possession, and I know a lot of people have strong feelings about drugs, and whether they ought to be illegal." In that manner, counsel introduces a component of the case, and implies that prosecuting drug crimes is controversial. Another example might come in a case involving eyewitness identification: "some people believe that the memory is like a video recorder. Others people believe that the memory can be flawed, and that it is possible to be honestly mistaken.' Which of those better describes your feelings about memory?" By introducing themes of memory and honest mistake, counsel suggests to the jury that the case will involve a mistaken identification defense, all while learning his jury's attitude toward the topic.


See Trial

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