The Art of Voir Dire

Summary

本视频脚本深入探讨了陪审团选择（voir dire）的重要性与技巧。它解释了陪审团选择的目的，即寻找能够公正审理案件的陪审员，并提出了一些理论，包括寻找对原告或被告有利的陪审员。视频中还提供了关于如何通过提问技巧来识别陪审员的潜在偏见或经历，以及如何利用强制挑战（peremptory challenges）和正当理由挑战（challenges for cause）来排除可能不公正的陪审员。此外，还讨论了如何在有限的时间内有效地进行陪审团选择，以及如何记录和分析陪审员的回答。

Takeaways

• 👨‍⚖️ 陪审团选择，也称为“voir dire”，意为“讲真话”，其目的是让陪审员宣誓说实话，以帮助确定他们是否适合审理案件。
• 🧐 陪审团选择的目的是确保陪审员没有可能影响他们公正审理案件的经历、偏见或预设观念。
• 🏛️ 传统上，律师通过与社区成员的密切联系来了解潜在陪审员，但现代律师面临更多挑战，因为他们与社区的联系较为疏远。
• 🤔 律师在选择陪审员时需要考虑的问题包括：潜在陪审员是否可能因个人经历而对案件有偏见，或者是否有可能倾向于支持或反对律师。
• 🐕 通过案例分析，如Dr. Kevorkian的案例，律师可以了解哪些经历可能使陪审员倾向于支持或反对被告。
• 🔍 陪审团选择中，律师需要通过开放式问题引导陪审员分享他们的经历和价值观，从而判断他们是否适合审理案件。
• 📝 律师在陪审团选择过程中需要记录和跟踪陪审员的回答，以便做出是否行使挑战权的决定。
• 🚫 律师可以使用排除性挑战（peremptory challenges）和因原因挑战（challenges for cause）来排除不适合的陪审员。
• 📚 陪审团选择的技巧包括：进行开场陈述、提出开放式问题、深入追问以获取更多细节，并适时提出挑战。
• 🤝 陪审团选择是一个复杂的过程，需要律师具备良好的沟通技巧、敏锐的观察力和有效的记录能力。

Q & A

什么是陪审团选择（jury selection）？

陪审团选择，也称为'voir dire'，是一个法律程序，旨在挑选出公正的陪审员来参与案件审理。'Voir dire'意为'说真话'，陪审员候选人在此过程中宣誓并回答律师和法官的问题，以判断他们是否能够公正地审理案件。

为什么现代律师在进行陪审团选择时面临更多挑战？

现代律师在进行陪审团选择时面临的挑战包括与社区的联系减少、对潜在陪审员的了解不足，以及社区成员之间差异性增大。这些因素使得律师难以像过去那样通过个人关系和对社区的深入了解来选择陪审员。

律师如何利用过去的社区联系来选择陪审员？

在过去，律师通过与社区成员的密切联系来了解他们的信仰和价值观。律师可能知道陪审员候选人的教会、居住地、所属组织等，这些信息有助于律师判断候选人是否能够公正审理案件。

什么是'挑战因由'（challenge for cause）？

挑战因由是一种排除陪审员的方式，当陪审员候选人承认自己可能无法公正审理案件时，律师可以提出挑战因由，请求法官将该陪审员排除出陪审团。

什么是'任意挑战'（peremptory challenge）？

任意挑战是律师在陪审团选择过程中可以使用的一种排除陪审员的手段，通常是基于律师的直觉或策略考虑，而不需要提供具体理由。每个律师在每个案件中都有一定数量的任意挑战可以使用。

为什么在陪审团选择中，了解陪审员的价值观和经历很重要？

了解陪审员的价值观和经历有助于律师判断他们是否有可能因为偏见、预设立场或特定的生活经历而无法公正审理案件。这对于确保案件能够得到公正审理至关重要。

在陪审团选择中，如何避免对其他陪审员产生'污染效应'？

在陪审团选择中，律师需要谨慎提问，避免让一个陪审员的回答影响到其他陪审员的看法。如果有必要，可以将某个陪审员的回答转移到私下进行，以减少对其他陪审员的影响。

为什么在陪审团选择中，开放性问题很重要？

开放性问题能够鼓励陪审员候选人更多地分享自己的信息和观点，这有助于律师更深入地了解候选人，从而做出更好的选择判断。

在陪审团选择中，如何引导陪审员候选人表现出他们的偏见？

律师可以通过提问和引导性的问题让陪审员候选人表达自己的观点和感受，从而揭示他们的偏见。例如，通过询问他们对特定事件或群体的看法，可以了解他们是否有潜在的偏见。

在陪审团选择中，律师如何记录和管理陪审员候选人的信息？

律师需要有良好的记录系统来跟踪陪审员候选人的回答和信息。这可能包括使用笔记、表格或其他工具来记录候选人的职业、经历和态度，并在必要时更新这些信息。

为什么在陪审团选择中，了解社区的观点和态度很重要？

了解社区的观点和态度有助于律师预测陪审员可能的反应和偏见，从而更有策略地选择陪审员。这包括了解社区对特定问题的看法，如种族、社会阶层和教育水平等。

Outlines

00:00

📚 陪审团选拔的目的与技巧

本段介绍了陪审团选拔（'voir dire'）的重要性和基本理论。'Voir dire'意为说出真相，要求陪审团成员诚实回答以判断其公正性。文中讨论了如何识别可能因个人经历、偏见而无法公正审判的陪审员。提及了律师与社区联系紧密时的传统选拔方式，以及现代律师面临的挑战，包括与陪审团的联系减少和社区多样性增加。最后，提出了现代律师应如何了解潜在陪审团成员的价值观和经历，以及是否需要改变自己的社交活动以更好地理解陪审团。

05:02

🔍 深入探讨陪审团成员的个人经历

这段内容深入讨论了如何通过个人经历来选择陪审团成员。提出了一种理论，即律师不是在寻找公正的陪审员，而是在寻找已经对自己案件有偏见的陪审员。通过案例分析，如Dr. Kevorkian的审判，说明了如何利用共同经历来影响陪审团的看法。同时，也讨论了如何通过焦点小组、创意思考和直接询问来发现可能对案件有影响的个人经历，以及如何在法庭上运用这些信息。

10:03

🚀 现代陪审团选拔的挑战与策略

本段讨论了现代陪审团选拔面临的挑战，包括法院对'voir dire'时间的限制和律师对陪审团了解的减少。介绍了法院可能采取的'voir dire'方式，以及律师如何利用有限的时间来排除可能对自己案件有偏见的陪审员。强调了与陪审团进行对话的重要性，并提出了在广泛开放的'voir dire'中如何进行有效沟通的策略。

15:03

📝 陪审团选拔中的记录与挑战

这段内容强调了在陪审团选拔过程中记录信息的重要性和难度。讨论了律师如何使用各种技巧，包括开放性问题、深入追问和引导性问题，来评估陪审团成员的公正性。同时，介绍了陪审团选拔中的两种挑战方式：无因挑战（peremptory challenges）和有因挑战（challenges for cause），以及如何根据陪审团成员的回答来做出合理的判断。

20:04

🗣️ 陪审团选拔中的沟通技巧

本段内容聚焦于陪审团选拔中的沟通技巧，包括如何通过开场陈述、开放式问题和深入追问来与陪审团成员建立对话。强调了避免对陪审团成员进行道德评判的重要性，以及如何通过举例说明某些经历可能影响其公正性。讨论了如何通过提问引导陪审团成员自我评估其公正性，并介绍了如何在时间有限的情况下有效进行陪审团选拔。

25:05

🤔 陪审团选拔中的策略与决策

这段内容讨论了在陪审团选拔中如何运用策略性问题来引导陪审团成员表达自己的观点，并如何根据他们的回答来做出是否进行挑战的决策。提到了关于“污染”陪审团观点的担忧，以及如何在提问时平衡获取信息与避免不必要影响的技巧。强调了在选拔过程中对种族、性别、教育水平等问题的敏感性，以及如何通过专业咨询来更好地了解和处理这些问题。

🛠️ 陪审团选拔的资源与信息获取

本段内容强调了在陪审团选拔中获取信息的重要性，并提出了如何从社区角度出发来分析可能影响陪审团成员判断的各种经历。讨论了如何通过案件分析、群体讨论和专业咨询来确定可能对案件有偏见的陪审团成员的特征。同时，介绍了如何运用这些信息来设计有效的陪审团选拔策略，包括公开陈述、开放式提问、深入追问和挑战技巧。

Keywords

💡陪审团选拔

陪审团选拔，也称为'voir dire'，是法庭程序中挑选陪审员的过程。在视频中，它被解释为'说真话'，意味着陪审员在被选中之前需要宣誓说出真相，以帮助法庭判断他们是否能够公正地审理案件。这是视频讨论的核心主题之一，涉及到如何识别和选择没有偏见、能够公正审理案件的陪审员。

💡偏见

偏见是指个人基于先入为主的观念而形成的对某些人或事物的不公正看法。在陪审团选拔中，识别潜在的偏见至关重要，因为这可能影响陪审员对案件的判断。视频中提到，律师需要通过提问来发现可能影响陪审员公正性的个人经历或偏见。

💡挑战

在陪审团选拔中，'挑战'是指律师对某个陪审员提出异议的权利。分为两种类型：'无因挑战'（peremptory challenges）和'有因挑战'（challenges for cause）。无因挑战是律师基于直觉排除陪审员的权利，而有因挑战则是基于陪审员自身承认无法公正审理案件的情况。视频中详细讨论了这两种挑战的使用策略和时机。

💡开放性问题

开放性问题是一种不限定回答内容的问题形式，它鼓励回答者提供更多信息。在陪审团选拔中，律师通过提出开放性问题来鼓励陪审员分享他们的背景、经历和观点，从而帮助律师评估他们的公正性。视频中强调了开放性问题在促进陪审员开放和提供信息方面的重要性。

💡引导性问题

引导性问题是一种旨在引导回答者朝着特定方向思考或回答的问题。在陪审团选拔中，律师使用引导性问题来探测陪审员的立场，或者在他们表现出可能的偏见时，引导他们承认自己可能无法公正审理案件。视频中提到，这种技巧可以用来迫使对方律师使用无因挑战排除陪审员。

💡种族问题

种族问题在陪审团选拔中是一个敏感而重要的议题，因为它可能涉及潜在的种族偏见。视频中讨论了如何通过提问来探测陪审员对种族问题的态度，以及如何通过这些问题来评估他们是否能够公正地审理涉及种族因素的案件。

💡经验

个人经验在陪审团选拔中扮演着关键角色，因为它们可能影响陪审员对案件的看法。律师需要识别那些可能由于个人经历而对案件有预设立场的陪审员。视频中提到了通过提问来发现陪审员的相关经验，以及这些经验如何可能影响他们的判断。

💡社区联系

社区联系指的是律师与他们所在社区成员之间的联系。在传统的陪审团选拔中，律师通过与社区成员的紧密联系来了解潜在陪审员的背景和观点。然而，视频中指出，在现代社会中，由于社区的分散性，律师与陪审员的联系变得更加困难，这增加了选拔合适陪审员的挑战。

💡法庭策略

法庭策略是指律师在法庭上采取的各种技巧和方法，以提高胜诉的机会。在陪审团选拔的背景下，这包括如何提问、如何识别和处理陪审员的偏见，以及如何有效地使用挑战。视频中讨论了律师如何运用这些策略来构建一个公正的陪审团。

💡记录保持

记录保持在陪审团选拔中至关重要，因为律师需要跟踪陪审员的回答和信息，以便做出明智的决策。视频中提到了记录保持的挑战，包括如何有效地记录和管理陪审员的信息，以及如何利用这些信息来指导挑战的使用。

Highlights

陪审团选择（jury selection）也称为“voir dire”，意为说出真相，目的是让陪审团成员宣誓说出真相，以判断他们是否为案件的公正陪审员。

律师与社区的紧密联系在传统陪审团选择中起到关键作用，但现代律师面临更多挑战，因为他们与潜在陪审员的联系更为疏远。

现代律师需要通过创意方法，如参与社区活动，来了解潜在陪审员的世界观和价值观。

陪审团选择的理论之一是寻找对律师案件有利的陪审员，而不仅仅是公正的陪审员。

通过案例分析，如Dr. Kevorkian案例，展示了如何利用陪审员的共同经验来影响案件判断。

O.J. Simpson案例中，律师通过了解社区对警察的看法来选择可能对自己案件有利的陪审员。

陪审团选择的目的是在有限的时间内，排除那些可能对律师案件有偏见的陪审员。

法院可能会限制律师的voir dire范围，只允许提出有限的问题或由法院自行进行。

律师需要了解如何使用无因挑战（peremptory challenges）和有因挑战（challenges for cause）来排除陪审员。

在广泛的voir dire中，律师有机会与大量陪审团成员进行对话，了解他们的兴趣和偏见。

如果发现陪审员有偏见，律师需要决定是否使用无因挑战或有因挑战来排除该陪审员。

律师在陪审团选择中的技能包括开场陈述、提问开放式问题、深入追问以及使用引导性问题来行使挑战。

律师需要避免在陪审团选择过程中造成“污染效应”，即不让一个陪审员的回答影响其他陪审员的看法。

通过询问关于种族、教育背景和生活经验等问题，律师可以了解陪审员的潜在偏见。

律师在陪审团选择中需要做记录，以跟踪陪审员的回答和决定是否行使挑战。

在重要案件中，律师可能会与心理学家合作，以帮助决定使用挑战。

律师需要从社区成员的角度审视案件，思考可能影响陪审团判断的经历和因素。

通过群体访谈技巧，律师可以更有效地进行陪审团选择，包括公开陈述、提问和引导性问题。

Transcripts

[MUSIC PLAYING]

What in the world are you supposed

to do with jury selection?

How in the world do you get a handle

on the complex set of skills that

are important for talking and selecting

jurors that will be right for the State versus Mitchell case?

Well, let me give you some tips and some suggestions

about ways to think about what it is that you're doing.

And so let me talk about, first of all,

the purpose of jury selection and talk to you

about some theories that are out there about that

and then give you some specific skills that I

hope you'll see integrate these different purposes into a set

of tasks that you have to perform as you do the jury

selection exercise.

Jury selection, of course, is called

"voir dire"-- jury voir dire.

"Voir dire" is to speak the truth.

And the idea is that jurors are supposed

to be sworn to tell you the truth for the purpose of your

trying to figure out whether they'll

be fair jurors for the case.

And so we'll talk in just a minute about how

it is that you get started and how it is that you describe

what it is that you're doing.

But one way to think about your task

is to say, how do I make sure that I've got jurors

out there that don't have experiences, experiences

in their lives that are going to make it very difficult for them

to be able to hear the case that I'm presenting,

and to be able to hear the fairness-- the fair thing

to do-- because of biases or prejudices or experiences

that they may have?

Now, in the old days, one of the ways

that lawyers dealt with jurors and jury selection

is that because they were so closely connected

to the communities in which they worked,

they would often have lunch with these jurors.

They knew where they went to church.

They knew where it is that they lived.

They knew what organizations they belonged to.

They knew how they thought about the world, because part

of the trial lawyer's expertise was

to know the members of the community,

know how it is that the community was

reacting to various things.

It was a small enough community that selecting jurors

was an art based upon the expertise of a lawyer who

knew the community and knew it very, very well.

And the task for us as modern trial lawyers is much more

difficult. Number one, we're getting

into court many fewer times.

But number two, our connection to our jurors,

our closeness to our jurors, our knowledge of our jurors

is much more difficult for us to be able to get into,

because our communities often are very much apart

from each other.

And so one question that we could ask

is, as opposed joining the country club and playing golf,

should you be joining the bowling league?

Or should you be hanging out in places

where your jurors are likely to come

from for the purposes of really understanding

how these jurors are going to see the world and to think?

In the size of the community that so many of us deal with,

even then, knowing what these jurors think and how they think

and how they feel and how they look at the world

is a very uncertain process even if you hang out with them

and even if you get to know the folks from the pool of jurors

that your jurors are drawn from.

So the purpose of the jury selection process is,

in this impersonal world, how do you

get to know about people's values?

And how do you get to know about their experiences?

Well, some have said that really, you're

not looking for fair jurors.

What you're doing instead is basically

you're looking for jurors who are for you--

who already have experiences.

You decide what those experience would

be that would make them predisposed to be for you.

And a classic quick anecdote might make the point.

You know Dr. Kevorkian.

Dr. Death a number of years ago up in Michigan

was tried on nine different occasions for attempted murder,

for murder, for euthanasia, for mercy killing

is what he called it.

And what we have is then a laboratory

to try to look at what jurors are going

to be sympathetic to a doctor who is not shy about the fact

that he is helping somebody end their lives by administering

some kind of a painkiller which has an effect of ending

their life because they choose to do it.

And the story is told that early on in these cases in a focus

group setting, one of the focus group members

raised their hand early and said,

you know, when I hear about Dr. Kevorkian,

I keep thinking about an old dog.

And this old dog was a dog that was suffering,

and we put it to sleep.

And the question it seems to me we

have to ask ourselves is, if we do this for animals

and we think it's humane for animals,

isn't it also fair to ask the question of whether

or not it's something that we do for human beings

when they're suffering?

Well, you might imagine that that story being told

affected the trial lawyers for Dr. Kevorkian.

And you know that in the first eight cases--

in the cases that he was not found guilty--

the first question or one of the first questions

in jury selection as reported by David Ball, one of the jury

consultants in these cases, was a question to the jurors--

have any of you had an animal, a dog

that you've ever had to put to sleep?

And by drawing on that common experience,

the argument is is that that experience could predispose now

jurors in hearing about a case to think

that Dr. Kevorkian should not be guilty of murder

for what it is that he's doing.

So in that theory-- that approach

is to try to find that experience.

Where would you find those experiences?

Well, boy, this is a place where you've

got to really brainstorm.

You've got to think creatively about focus groups

and trying to find out whether there

are formative experiences.

Presumably we know from the O. J. Simpson

case is that there are experiences

that people have that could make them very much against you.

Remember, in the O. J. Simpson case,

the theory was is that the police officers were in a rush

to judgment, that they were racist,

and that they planted evidence.

Well, if your experience in the Los Angeles community

was that police officers did plant evidence, did lie,

did convict individuals, or help convict individuals because

of their racial bias, then you can see that in that instance

now you're not looking for jurors who are for you.

You're looking for jurors who are against you.

And you're trying to find out-- if you are

on the prosecution's team--

what jurors have those kinds of experiences.

How do you feel about police officers?

What's your experience been with police officers?

And your jury selection would try

to find out those experiences and try

to find ways to exclude jurors if they had those experiences.

Now, so theories are often directed at these three

things-- finding fair jurors, finding jurors for you,

finding jurors against you.

And you need to know that a whole lot of courts

have decided that because the time it would take really

to find out about these experiences

is time the court's not willing to give--

that the court either takes over the purpose of voir dire

by telling the jury, we're looking for you to be fair.

And you tell us if you don't think you can be fair.

We don't have the time unless we've

got some pre-trial work done that's

made a presentation to the court that

shows there are particular kinds of experiences that

need to be watched out for that's

going to create an unfair bias.

What we're left with--

if a court gives voir dire, it's often giving voir dire

on a very limited basis.

And trial lawyers today feel like that most of their time

that needs to be spent protecting themselves

from experiences jurors may have,

biases that they may have, prejudices that they may have

that would predispose the jury against them

and against their case.

And so race is a topic of conversation.

Race is important for the purposes

of trying to determine whether or not

individuals are biased and whether or not, in fact, they

have prejudices against people of particular races.

Being from not from this community, being an outsider,

being somebody who has a education or a situation where

they are predisposed against folks who have those kinds

of qualifications-- either for or against--

is something that trial lawyers today

tell us that they spend their time when they're

given that limited opportunity.

Now, for our purposes of discussion,

we're going to assume a wide open voir dire.

And for our purposes of discussion,

we're going to assume that you are in a situation where you

have a huge panel of folks, and you're

going to try to bring them into the box.

And you're going to try to create an environment where

they're going to talk to you, and they're

going to share with you how they feel about the world, about

the values that they have that help them either see this case

one way or another.

And we're going to allow you to go ahead and have conversations

with jurors to do that.

If you're unrestricted in that regard

and you want to have that access,

you're going to have to petition the court without that kind

of permission granted.

Often, courts will take over the process themselves.

Maybe at the most they'll let you

submit individual questions, but you

may find that most courts today have restricted your jury

selection down-- way down.

We're going to do it in a broad way,

because we want to give you an experience of what

it would be like to voir dire in a situation

where it's wide open.

And you'll get a chance to really explore

the interests and biases and experiences

that jurors may have.

Well, what if you found the bias?

What if you found a concern that would

make you worry that the person might be against you?

You need to know about two things.

You need to know about peremptory challenges.

In every jurisdiction, you're given a certain number

of peremptory challenges.

The peremptory challenges are often somewhere

in the neighborhood of six to 10,

and they'll give you a chance to go ahead and excuse jurors

for the purpose of saying that I just don't feel good

about this person.

And I would rather not have my client

have to deal with that person.

They're just not feeling right to me.

Your peremptory challenges are on your choice based

upon feelings that you get.

Often those can be informed by a psychologist who can be sitting

watching as this thing goes on.

Or they can be informed by an associate who is taking notes

as you're having conversations.

You'll see that one of the most difficult things that

happens as a skill of jury selection

is, how do you keep track of what answers you're

getting from what people?

And then how do you make a good, reasoned judgment about

whether you ought to exercise a peremptory challenge or not?

Now, the other kind of challenge is a challenge for cause.

The challenge for cause is brought

about when the jurors in a sense admit that it would be very

difficult for them to be fair.

And we'll talk about the different skills

that you're looking when you want your opponent

to at least exercise the peremptory challenge.

And we'll talk about the skills of questioning

that are involved when you're trying

to lead a juror to a position where you would

rather that they, in fact, admit that they would not

be fair in a case.

So the purpose of jury selection is fair jurors--

but when time is short at least to try to get rid of jurors

that are predisposed against you.

And you're doing that bye having conversations

with folks that would allow you to exercise a educated judgment

to exercise a peremptory challenge.

Force each side to use up their peremptory challenges so

that, in fact, they're left with jurors that presumably-- after

that each side has exercised their peremptories--

to a balanced jury and also to make sure that if you can,

you don't want to waste your peremptory challenges.

You have an unlimited number of challenges for cause

based upon a juror's admitting what it is that's going on.

All right.

Now let's talk about the skills.

The first thing is really just getting started.

Here, again, the judge will have done

a fair amount of the work in the typical setting.

The judge will have asked the jurors whether or not

they know any of the parties.

They'll have asked whether they know

any of the lawyers in the case, whether they'll

know any of the important witnesses that

are going to testify or any of the witnesses at all.

And so there will be this, do you know any of these parties?

Presumably, if you know these individuals,

they could be a reason to keep you off.

After that, the judge often will let counsel--

if they've given them permission--

to go ahead and address the jury-- to go ahead and stand

around and address the jury.

And what you have to see is that how the judge sets up

the voir dire often can vary.

Sometimes what you have is you have a courtroom

that has about 40 jurors in it.

You seat 12.

You talk to the 12.

As folks get excused, then other people come,

and they fill their places until the peremptories have been used

up and everybody is satisfied.

Or in addition, what you can have is

you can have a situation where everybody

is sitting in one place, and you're

having a conversation to the large group as a whole.

And you're trying to include prospective folks

into the conversation one at a time.

Sometimes the way it works is you have a voir

dire on an individual juror.

And you satisfy each side about that,

and then you move on to the next one.

That technique is a very, very labor process,

and there's a whole lot of concern about whether everybody

else is bored by your individual conversations with the jurors.

And therefore, often that is not a technique

that you see too much.

But you could have an individual jury voir dire person

by person.

When you stand, then, if you assume the usual process--

which is that you have a group of folks sitting

in the box and then a group of people who are sitting out

in the audience, and you're going

to ask questions to them--

you should explain what jury voir dear is.

And tell them, in a sense, this is the time

to talk to you to find out whether or not you're

the right jurors for this case.

Now, it's important for them not to see

that you're casting moral judgment

on them if you excuse them.

And you could give them examples about this--

that in fact, if you've just been through a divorce,

maybe you're not the right person

to sit on a divorce case--

that if you've just lost a loved one,

then maybe you're not in a position

to be the best person in a wrongful death case.

If you've just had a problem with a police

officer and a false arrest, then you probably

wouldn't be the right person to sit in a case

where the police's judgment in arresting a person is at issue.

And so the description of and giving examples

of the kinds of experiences jurors

may have in a generic case is a way often

that lawyers will get started with the voir dire.

And you're trying to establish good eye contact

with the people in the voir dire.

You should take a pace that's open and friendly,

that's conversational.

And what you're trying to do is to say to them,

we're looking for fairness.

We want you to, in a sense, put yourself into the shoes

of my client and ask yourself-- this is the overall purpose--

could I be fair to him?

Or am I predisposed based on who I

am to really not be fair to that individual based

upon their characteristics?

And that's where you're headed in this,

and your opening conversation then

describes what jury selection is.

Now, one of the things that's interesting about jury

selection is that you want people to open up.

And obviously the best way to get them to open up

is to ask them open-ended questions.

Tell me about yourself.

Tell me about your job.

Describe to me where you work.

Tell me what it is that you do day to day.

Open-ended questions with jurors are ways to get them to talk.

The problem is is that as you're getting them comfortable

and having a conversation with them,

one of the things that you've got to be careful about

is that everybody gets included fairly quickly.

Otherwise what will happen is that there

is a potential for boredom to set in,

or people feel excluded.

You're very interested in having this conversation with this one

juror, and you're less interested in them.

And they feel slighted.

And so very quickly, what you want to do

by asking open-ended questions is

to engage the group in a whole.

Now, where time is limited, after you do some beginning

kinds of tell me about yourself questions--

if the court gives you that--

then you want to move very quickly

into kinds of questions which are trying

to get at those experiences again

that may occur to jurors that would make them predisposed

against you.

Now, do you see the dilemma here?

The dilemma is that if you ask a question like,

have you ever had an experience with a police officer,

or somebody you know had an experience with a police

officer, or you believe the police officer was not

playing fair--

if you ask a question like that, then the potential

is that the rest of the jury voir dire

gets polluted by the answer that is given.

The argument-- that is, be careful of pollution argument--

is to be careful about the kinds of questions that you're asking

and the amount of discussion that you're

getting from the jurors.

Because, in fact, it may affect the rest of the jurors

to see the case that way.

Now, you're going to hear different advice about this.

Frankly, I think that the advice against pollution

is overstated.

It does seem to me that all the jurors as they listen to it--

if you what you do is you develop that experience

the person is asked questions about--

it sounds to me like that experience is very fresh

to you--

that it would be very difficult to put that experience aside.

You agree with me that it would be difficult

for you to judge this case based on the facts presented

in the case without importing in your own experience

into the setting.

In that situation, if the person agreed with you about that

and they're excused for cause, that there's

an education that occurs to the jurors that overrides

the potential pollution effect.

On the other hand, there are, of course,

situations where if a person is describing spouse abuse

or if a person is describing a very tragic situation where

there will be sympathy, and, of course,

exercise your judgment as to whether or not,

in fact, you might want to talk about it in private.

One of the things you should know is that you can choose--

if you see that the juror is having difficulty-- to say,

would you like to talk about this in private,

and to invite that as a way of understanding more about

the experience-- perhaps making a judgment about challenge

for cause--

without having this overall pollution effect on the jurors.

My view for what it's worth is that better

to find out about that experience,

to find out how deeply it's held,

and not worry so much about the effect on the rest

if what you can do is to show by your questioning

that, in fact, it's not fair for that person

to be sitting on the jury.

Then the educational effect presumably overwhelms

the pollution effect that might otherwise occur.

And again, for what it's worth also,

my view is that if you can get people

to talk about race issues and prejudice issues--

that in fact, the education effect of getting people

to recognize that it's difficult for them

to be fair with those kinds of attitudes and views

will teach the rest of the jurors

as to how it is that they should behave.

The pollution effect is overblown.

Better to find out about it as opposed to not find out

about it.

How do you find out about questions of race?

Obviously, talking about attitudes towards bussing,

about where their kids go to school

can give you some general feel.

When you have a race issue-- when you have a defendant that

you're representing that is a minority member of a community,

and you want and worry about the race issues--

one of the things to do is to really get some consultation

and some help.

You want to find out, how do people feel?

You want to find out what kinds of questions

will give the most socially acceptable way into people

talking about their attitudes and their perceptions,

and that is something that involves

good expertise of people that are out there that

will help you with that.

But part of what you're doing is asking

them to describe their experiences, to go deep,

to tell you more about those experiences,

and then make a judgment about whether or not

you want to take it to a challenge to cause

or whether you want to stop the conversation

and at least take them into a peremptory challenge

and have them excused.

So you have group conversations.

You're asking open-ended questions.

You're following up to try to get more information in more

detail.

Once you get enough information, what you're wanting to do

is to make the decision about whether or not

you're going to take them to a peremptory challenge.

Your view about peremptory challenges--

when you want the opponent to waste one,

you've heard and experienced that the person has

that's predisposed for you, one of the things that you can do

is to lead in a way that rehabilitates that juror.

And the way that you lead to rehabilitate the jury

is to say, despite that experience,

I'm sure you could still put that aside and try

this case based upon the evidence that's

presented in this case.

Am I right?

You could still be fair, don't you

think, based upon hearing all the evidence in the case?

And that technique-- a leading question

that leads them to a fairness position--

will force your opponent to use a peremptory.

Judges often jump in in order to be

able to rehabilitate a juror if the judge is in the room,

because they want to move it along.

And they want you to exercise your peremptory so that you're

back into a position where you're stuck

with the jurors that are there.

But you can use those same techniques

when you try to put on the other side

the option for exercising a peremptory challenge.

If you want to lead somebody to a challenge for cause,

similarly, your open-ended questions

will change and will move into a leading question format.

So having had that experience of having a sister who

has been abused as a spouse, and you saw the tragedy

that she went through, I take it that that's an experience that

still is fresh.

It's one that still makes you angry,

and you still probably have some strong feelings,

don't you, about the situation that your sister

was forced to suffer through.

And I would imagine it would be hard to put those aside

in judging this case and deciding whether or not,

in fact, there was abuse that was going on in this case.

And if you get yeses to those leading questions,

then you're in a position to exercise a challenge for cause

to ask the juror to be excused.

Now, there's a whole technique about,

when do you exercise the challenges for cause?

Do you exercise them immediately?

Do you save them up within the group in the panel?

You need to ask the judge and the court

as to how they're dealing with the questions of when you

exercise your peremptory challenges

and when you exercise your challenges for cause.

You can see that what this does is

it creates a record-keeping nightmare for a single trial

lawyer.

You have in front of you a group of people.

You're trying to keep their answers straight.

You're trying to remember who or what their names are

if you get to know their names, or you're just

referring to them by jurors one two, three, and four,

and then that changes.

You've got occupations.

You've got information about their likes and dislikes.

And keeping of that is a record-keeping nightmare.

You want to make sure you have note-taking materials in front

of you with jurors as they go in for you

to be able to take notes and scratch out

if people are excused in order to be

able to keep track of what's going on--

or to ask an associate to help you in that record keeping.

Often, lawyers today-- when the cases are significant enough

and the resources are there to go ahead and do it--

you may have people in the room--

psychologists who you're consulting with-- to help you

make the decisions.

So the skills of jury selection are frankly

making an opening presentation about what jury selection is.

Number two, it's the ability to ask open-ended questions both

of individuals but to the group as a whole--

that as you get information about your jurors

that you want to follow up to go deep to get more detail to find

out more about those experiences and then similarly

to make a decision about peremptories or challenges

for cause or whether or not you believe

the person is fair and whether or not

you've got enough to feel confident

that they're at least in the midway point with you

and move on.

One last word-- where do you get the information?

Where do you get the topics to ask the jurors about your case

to find out the experiences they may have?

Well, there's no substitute for you're looking at your case

from the perspective of people in the community

and thinking, what experiences might

they have that could make them predisposed against my client?

So issues of race, differences in class,

experiences that people may have had

that have strong emotional appeal

could predispose them one way or the other.

Differences in gender, education level, differences in ways

that people see the world--

people who are in basically a belief

that they control their environment and, in fact,

things then that happen are somebody else's fault

if they are controlling their environment-- or people who

really think that life is not very easily controlled.

You will find that jurors consult and say,

there are basically two types of people in the world--

and you've heard about this before--

A types and B types.

And the A types that are control freaks--

they're the ones that you want if you're the prosecution.

And they're the ones that you want

if you're the defendant, because obviously then it's

somebody else's fault if something bad happens.

And you can control yourself.

If you can control your environment,

then it's likely that the plaintiff

is contributorily negligent.

And then there are the B types who

worry much more that life happens to them.

They're kind of the stereotypical bleeding-heart

liberals who are overly sympathetic to the sad story

of an individual and what it is that's happened to them.

There are all kinds of theories and all kinds of stereotypes,

and you want to canvas broadly--

asking yourself basically, what are those experiences?

And what is the profile of the juror who would

be predisposed against me?

Or what kinds of experiences may be

in play that could predispose a juror for me, especially

if we've got the resources to sort that out?

And having an analysis of those key topics that you

want to talk about--

the techniques or group interviewing.

So some ideas about skills, public presentation,

open-ended questions, follow ups,

and then leading questions to exercise challenges for cause

and peremptory challenges.