Voir Dire

ATLA Seminar, March 1999

Written by: Julie Fenyes and Robert Kreisman

I. Overview: Value of Voir Dire

1. Voir Dire is your only opportunity to get to know your jurors. Plan it effectively to find out as much information as possible about their experiences, attitudes, and opinions that relate to your case.
2. Voir dire is your first opportunity to introduce your case. Do it carefully though planned series' of questions, not through lectures.
3. Voir dire allows you to develop rapport with your jurors. Listen carefully, speak in conversational tones, and encourage them to talk freely and to ask questions back, if they need something clarified.

II. Know the Court's Practices

Voir Dire practices vary from jurisdiction to jurisdiction and from judge to judge. When possible, learn as much as you can about how that particular court will handle voir dire for your case. Make requests prior to trial. Have a clear understanding of how this critical segment of trial will work.Things to have knowledge of:

• Restrictions, including but not limited to:
  • Topics for questioning
  • Time allowed for questioning
  • Tolerance for individual questioning
• Procedure for questioning and seating panels
  • How many will you question at one time?
  • Back-striking: Once you've passed them, can you strike them later?

III. Make a positive first impression

Voir dire is the first opportunity a juror has to form an opinion about you, your case, and your client.

This is perhaps the toughest part of your job: eliciting honest, personal information from distrustful strangers in a public forum, with a judge and roomful of other strangers scrutinizing their answers.

Put the jurors at ease:

• Dress in lighter, less formal colors. Save your "power suits" for cross- examination and closing arguments.
• Speak in a conversational tone.
• Use open non-verbal communication. Smile, nod, and give other affirmative feedback.

IV. Be well organized, but not compulsive

Have a well-planned outline of topics you need to address in voir dire, with sample questions for each category. However, you cannot plan all questions prior to voir dire. Many questions, often your most revealing questions, will arise from the answers jurors give.

V. Voir Dire Strategies

1. Remember your most important goal during Voir Dire: Learn as much as you can about potential jurors, so that you can effectively challenge some for cause, exercise peremptory strikes for others, and develop rapport with those you hope to keep.
2. Let the jurors do most of the talking. The best way to get to know your jurors is to let them talk. While voir dire is also an opportunity to introduce your case, to educate, and to persuade, your primary interest is in learning what pre-existing biases or prejudices jurors may hold toward the issues in your case. This is the only way you can effectively challenge both for cause and peremptorily. In affirming the responses you hope for (without belittling those you do not like,) you will allow the jurors to persuade themselves.
3. When you can, use a "looping" technique in developing follow-up questions. Looping involves incorporating jurors' answers into the next question, using the juror's language. This technique is useful for several reasons, including:
   1. Requires active listening skills, making jurors realize that you care about their answers, and that what they have to say is important. Effective active listening skills invite jurors to share more information.
   2. Helps you to develop rapport with the jurors. When you use their language, jurors feel that you think alike, and that they may play an important part in explaining your case to other jurors.
   3. Looping is most useful when questioning jurors to challenge them for cause.

VI. Open versus Close-ended questions

1. Open-ended questions are non-leading questions that allow thoughtful reflection of answers, and allow jurors to reveal information about them and their life-experiences with you these questions tend to be conversational in tone, and help you to develop rapport with your jurors. Open voir dire with open-ended questions about topics that are easy for jurors to discuss (What do you do at work on a daily basis?) and progress to more case related questions (What type of response do you expect when you call 911?)

   Open ended questions not only reveal explicit information about issues, but allow reveal information about the jurors' styles of communication, leadership potential, intelligence, eloquence, analytical abilities, etc.

2. Closed questions are questions that require one word answers, typically Yes or No, an age, a job title, a number (as in number of children), a date, etc. Closed questions should only be used for the following three purposes:
   1. Getting very general demographic information that can be followed by open-ended questions: "Where do you work?" "What is your job title?" followed by: "What type of work does your job involve, on a daily basis?" or "what are some of your responsibilities at work?"
   2. Introduction of new topics: "have you ever had to call 911?" "Have you ever had to return faulty merchandise?" "Have you ever served on a jury before?" When used for this purpose, these questions should always be followed with open-ended questions to elicit details.
   3. Locking Jurors into their answers to challenge them for cause. This can be done effectively through the looping technique, turning their open-ended answers into yes/no questions.

VII. Jury Selection

1. Challenging Jurors for Cause
   Challenging for cause seems to be a lost art in voir dire. Attorneys often go into the courtroom counting on their precious few peremptory strikes to secure a reasonable jury. It is essential to listen carefully to every answer the jurors give, and to recognize when a juror can be further questioned and committed to answering in a way that will make him/her a likely candidate for an effective challenge for cause. As stated above, probing jurors for cause should be done through open-ended to closed-ended questioning.

   Be discreet when challenging for cause. When possible, challenge for cause after questioning the entire panel, then approach the bench with careful notes on all challenges. This helps avoid embarrassment or resentment if the juror is not excused. Be sure to know the expectations of the judge on how to challenge for cause, and recommend this approach before voir dire begins.

2. Peremptory Challenges
   Do not feel compelled to exhaust all peremptory challenges, unless your challenges for cause are unsuccessful and you feel the issue will be effective grounds for appeal, should the case not turn out well.

   Keep careful notes about each challenge to protect yourself from a Batson Challenge.

   Remember that you have a limited number of strikes, and should use them only on those jurors who you suspect would be strong leaders for your opposition. Do not use these challenges to eliminate followers who might not see things your way.

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