The Art of Voir Dire

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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.