Dos and Don’ts of Jury Selection
Over the past couple of months I’ve prepared for multiple trials. As I wrote a little while ago, this included a three-week trial involving some serious sex offenses. After that concluded I had a misdemeanor domestic violence trial to prepare for.
These trials were going to be quite different. In one the client was facing multiple felonies, the other a single count of misdemeanor assault. But in both cases the stakes were high: each client was facing a relatively significant amount of jail time if they lost. And in each case, their matter would ultimately be decided by a trial of their peers.
But which peers? Prior to any testimony, prior to opening statements, the lawyers engage in jury selection. That selection process is called voir dire. And despite all of the experts and witnesses and exhibits that come in during a trial, voir dire is one of the most interesting and complex aspects of the whole affair. And it could not be more important. With exactly the same charges and testimony and facts, one jury could acquit while another could find a defendant guilty. Each juror brings with them a different set of biases and preferences and life experiences. Which is why voir dire is so critical to ensuring a client gets a fair trial.
The process in Washington State works like this: a bunch of people, called the venire, is called in. The venire is usually 25-50 people from all over the city or county where the case is taking place. The lawyers are given some basic information about the members of the venire, like name and age and occupation. The judge will ask some basic questions to the entire panel, like if they know any of the lawyers or if they know someone who’s faced similar charges. Then each side gets an amount of time, between 20 and 60 minutes generally, to ask members of the venire individual questions. Those individual questions are the essence of voir dire.
After that’s over the venire is whittled down to six people in misdemeanor cases or twelve for felonies. Jurors number 1-6 (misdemeanors) or 1-12 (felonies) are the default jurors. But lawyers can kick off a juror in the jury box, in which case #7 or whomever takes the spot of the excused juror. That process is called using peremptory challenges, which permits lawyer to kick someone off for basically any reason. This goes on until everyone is happy with the members of the jury and/or the lawyers run out of peremptory challenges. Once that happens the group sitting in the jury box is the jury for the case.
The purpose of voir dire is to find jurors who are receptive to your theory of the case. You can’t really persuade or educate potential jurors in such a short amount of time. But you can, if you’re lucky, determine who is willing to keep an open mind to your theory of the case and who will have their mind made up before the first witness is called.
The process of questioning individual potential jurors is crucial and it’s where a lot of lawyers get tripped up. While I’m constantly refining the process for myself, I have come up with some rules I follow when conducting voir dire. Since the time to do individual voir dire is limited, I’ve found following these rules make the process as productive as possible.
Don’t Waste Time
Did I mention the time to do this is limited? Every attorney I know feels the same way: if we had our druthers, we would spend at least a week with each potential juror. Unfortunately the courts limit us to those 20-60 minutes.
With such a limited time to talk to so many people, time is of the essence. I see a lot of lawyers start the voir dire in one of two ways. Either they’ll talk about what voir dire is “Voir dire is from French roots and means ‘to speak the truth’ and lawyers, and I’m a lawyer, use it to get to know you better and see if you’re a good fit for the jury and my tie is red because I read that’s a power color and blah blah blah.” Or they’ll begin with something totally wacky and pointless, like “Good morning! What? I DIDN’T HEAR you! I SAID GOOD MORNING!!!!!!!!” etc. It’s engaging, I guess, but it’s also a complete waste of time. Maybe an attorney wants to be perceived as a camp counselor but I don’t see how it helps you win a case.
The other way lawyers can waste time is to talk to people who are unlikely to be seated as a juror. Based on juror numbers, you know which people are most likely to be seated. If each lawyer has three challenges and there are 30 people in the venire, it’s pretty unlikely #30 will actually be seated on a jury. As such it’s a better use of your time to spend the majority of your attention to people who actually have a chance of being seated.
Do ask open-ended questions
The second trial I mentioned, the domestic violence case, ended up being dismissed on trial day. So, finding myself in the courthouse with a very free calendar, I wandered into another courtroom to watch some trial work. There I saw a very young prosecutor engaging in voir dire on a patronizing a prostitute case. He was a nice guy but clearly very nervous.
I think nerves are a reason people go to the well of “easy answers.” This prosecutor’s questions were almost all closed-ended questions, regarding victimless crimes. Getting to peoples’ biases on prostitution is certainly important for this type of case. The problem was, this guy kept asking questions like:
Prosecutor: “You would agree, wouldn’t you, that people shouldn’t decide what laws they do or do not have to obey?”
Potential Juror: “Yes.”
Prosecutor: “And would you not also agree that prostitution can be the cause of human trafficking?”
Potential Juror: “Yes.”
Well great! You asked some softball questions and you got the answers you were looking for. But how does that help you decide who to keep and who to kick?
The defense attorney jumped in with gusto. Defense Attorney: “Juror Number 3, what do you think about prostitution?”
It seems like a dangerous question, but it’s really not. It gets people talking. And if someone says something brutal like “all prostitution leads to drug use and abandoned babies and slavery and thermonuclear war” then you know as a defense attorney that you should probably get that potential juror off the jury. And it might lead to good conversation between other jurors, who think that view is a little too narrow. Which leads to
Do have a plan and a purpose
The rules regarding jury selection bar attorneys from outright arguing the facts of the case during voir dire. But the purpose of voir dire is to determine the biases and prejudices of jurors for your individual case. You need to find a way to discuss the basics of the case without going too deep. It’s a blurry line.
That being said, you’re not doing your client any favors if you don’t at least approach that line. If the case is a prostitution case, you better talk about prostitution. If the case is a DUI, getting to peoples’ thoughts on alcohol and MADD and all the rest is important. If your DUI case involves arguing the breath machine was faulty, you should definitely talk about peoples’ views on the lifespan of technology, warranties, etc.
For a criminal defense attorney, the goal is simply to get a jury ready to embrace the concept of “reasonable doubt.” You don’t need a jury that loves you or wants to do whatever you tell them. You simply want a jury that follows the law and holds the prosecution to their burden. So for an individual case, determining what biases and prejudices might lend a juror to appreciate that case’s weak points, i.e. what the defense attorney will be arguing to the jury, is critical. If your proposed line of questioning doesn’t focus on those biases and prejudices, it’s not a good line of questioning for this particular case.
It’s good to have a plan. But an attorney should also listen to the answers potential jurors give. Don’t be afraid to abandon your plan if someone gives you an unexpected answer you can utilize.
What I’ve seen before is a lawyer gets an interesting answer but then fails to follow up. They nod their head to whatever the potential juror says and move on to someone else. It’s a wasted opportunity.
The best advice on voir dire I ever received was from an old professor of mine. He claimed the most effective question a lawyer can say in voir dire is “Can you tell me more about that?” It’s completely open-ended and gives the juror free reign to expand on whatever point they were trying to make. You don’t say that for every interaction
Juror: “I think murder is bad.”
Lawyer: “Can you tell me more about that?”
but for something potentially revealing, it’s a great way to get more. The best part of the question is its neutrality. It doesn’t give any judgment or hint of the “correct” answer. It simply allows a juror to continue, in his or her own way, what they want to say. But you only get to ask it if you’re listening to the answers people give.
The other thing to listen to is the questions and answers when the prosecution goes up. In voir dire the prosecution always goes first. A juror may give your case some gold while the prosecutor is soliciting answers. Definitely listen for that and capitalize if available. “I know the prosecutor asked you about addiction. I want to continue discussing addiction for a bit.” Etc.
Don’t be condescending
I almost never see this in person. I try not to do it and most of my opponents are reasonable about it, too. But I always ask my friends and family who served on jury duty “How did the lawyers do?” And very often I hear back “the defense attorney was so smug.”
I get it. As a defense attorney, you’re on the side of angels, you look great in a suit, and you’re protecting innocent people from the government’s wrath. You’re an underdog and a hero and deserve a little swagger. But based on the amount of times people tell me how off-putting it is to see attorneys act like that, it’s probably better to keep it in check.
Besides that, voir dire requires people to be comfortable giving honest answers, even and especially, if those answers are unpopular. But people are not going to give you a break if they don’t like you. Sure a lawyer can get people talking; the rules require it. But get them talking in a meaningful way? Where they’re comfortable delving into their own history? That requires, at the minimum, respect. Better still if they actually like you. For voir dire keep the ego in check.
The essence of the practice of voir dire is this: you are there to learn things. The jurors are the teachers and you are there to inquire and be educated. So arguing with the jurors about the “right” answer goes against the very core of what you’re trying to do. Also you look like a dick.
But I see it all the time, and mostly on the defense side. “That’s actually not the definition of ‘beyond a reasonable doubt’ sir.” “Actually that’s not really a bias. That’s more of a preference.” “Actually, attorneys do cast a reflection in a mirror, ma’am.” In my head the hypothetical attorney is always saying “actually,” and maybe adjusting a monocle.
The worst thing to do is argue because it tells jurors 1) there is a right answer to your questions, and 2) if you don’t know the right answer, you will be punished for being ignorant. Can you think of a worse environment to get people freely talking? Never, ever penalize a juror for answering a question, even if the answer is remarkably ignorant. Just thank them for the response and ask the panel “Does anyone else have an opinion on that?” If it’s way off base, someone will pipe in if they’re given the opportunity.
Do establish credibility
A defense attorney standing up for someone accused of a crime is an implicit statement that the defendant has a defensible case. That’s not always true but a jury won’t know that. They will know there are two people who disagree and they are being called to resolve the dispute.
Because of that, the jury will look to the lawyers for clues on how to vote. Certainly they will listen to the testimony and follow the judge’s instructions. But they will also be looking to the conduct of the lawyers. If an attorney looks like he’s deceptive or afraid, that will permeate their entire case. A lawyer who appears honest and trustworthy will likewise receive the same benefit of the doubt on their arguments.
Voir dire is the first time a lawyer gets to interact with a jury. So that first impression is an important opportunity to establish your bona fides as someone worthy of being listened to. But how?
The ways I establish credibility are twofold: I show respect for the process and I’m as honest as possible. For showing respect, I never argue with the judge or even necessarily opposing counsel, at least within earshot of the jury. I thank the judge every time they give me the opportunity to speak. I thank the judge even when I lose a ruling. I ensure the courtroom knows I am taking the case seriously, because to my client, it’s a very serious process indeed.
Honesty is a bit trickier to demonstrate. The best way in voir dire to establish your honesty is to express something honest and vulnerable about yourself. For example the topic of presumption of guilt comes up a lot. I may something like
“Who here sees a news report about a celebrity charged with a crime and thinks to themselves ‘I wonder why that celebrity did that?’ I don’t mind sharing that I do that, and I know as well as anyone in our system that when someone’s charged with a crime they are presumed innocent. But it’s a completely natural response. Who else has that same response?”
And then we get talking about setting aside those biases when serving on a jury versus just watching the evening news. But admitting a personal fault shows the jury that it’s a safe place to admit theirs too. And once you’ve established you’re an honest person, the jury is more likely to believe you when you say your client is innocent.
Clearly, establishing credibility is more art than science. Age and presentation as a lawyer are also factors a jury will look at, and both come with time. But creating that relationship with the jury, that presence, will be boon for the rest of trial.
Voir dire is one the most important and fascinating parts of a criminal trial. The selected jurors will be the final arbiters of a case that’s been worked on for months, sometimes years. Being able to get a fair cross sampling of members of the public on the jury goes a long way making sure that work gets results.