Bad Voir Dire / Good Voir Dire
I think a lawyer should never pick a jury alone (it takes at least four eyes to keep track of jurors’ body language). I also like to watch other lawyers’ voir dire efforts. So whenever I get a chance I help out other defense lawyers when they pick juries. Even when it’s bad, I learn something. Here’s a rule of thumb to tell a good voir dire from a bad voir dire: in a bad voir dire, the lawyer is doing 90% of the talking; in a good voir dire, the potential jurors are doing 90% of the talking.
I think of voir dire as a first date with 24 or 60 people. You want to learn enough about them that you can decide which of them you would like to see again (on your jury), and you want those who you’re going to keep to like you and your case. If you pick right and charm them now, it’ll be easy to seal the deal later.
Most prosecutors give a good example of a bad voir dire. At least in this county few of them learn how to perform an effective voir dire. They (a) lecture the jury; (b) ask yes-or-no questions; (c) say stupid things like “I take it from your silence that the answer is no;” and (d) react defensively to “bad” answers. (Fortunately for them, the facts [and, in Harris County, the jurors] are usually so weighted against the accused that the State could take the first twelve potential jurors and still win.)
Lecturing You may want to tell enough about your perspective that you could find out how your date felt about the same things, but if you were on a first date and you spent the evening lecturing about how you saw the world and what you believed, you probably wouldn’t get a goodnight kiss, much less a second date. People don’t like to be told what to believe; if you lecture your jurors, they are going to like you and your case less. And of course lecturing someone is not a way to learn anything about her.
Yes-or-No Questions Save the yes-or-no questions for cross-examination. They’re not friendly. Yes-or-no questions are also unlikely to extract any meaningful information. People’s views on most subjects are more nuanced than a yes-or-no answer will reveal. Voir dire questions should be open-ended, and should generally be directed toward the part of the jurors that will be deciding your case (their guts) rather than their heads. “How do you feel about that” is better than “what do you think about that” is better than “do you agree with that” is better than “that is how it is.” Sometimes you’ll need to poll the panel on some issue — “how many of you . . .” — but that should be a rare exception.
Stupid Lawyer Stuff Somewhere lawyers learned to say dumb things like “I take it from your silence that the answer is no.” Judges say it all the time. No, you boob, take it from our silence that you asked a bad question, or didn’t warm the panel up enough, or otherwise aren’t communicating with them. They’re not going to like that you assume you know what their silence means, and you’re not getting any information out of them by saying that. If you’re going to ascribe meaning to their silence, they’ll just remain silent and let you assume whatever you want. Imagine being on a first date and asking a question that is answered with silence. What do you do? Do you say, “I assume that the answer is X” and go on with the conversation? If so, the conversation is quickly going to turn into a monologue as your date excuses herself to go to the restroom and never comes back.
“Bad” Answers Imagine that you’re trying a garden-variety DWI case (no test, no accident). A juror says, “My brother was killed by a drunk driver.” Ouch – the rest of the jury panel has just been told that one of them was victimized by a drunk driver, and has been reminded that drunk drivers kill people. How do you respond? The lawyerly way to respond would be to immediately set up a challenge for cause by questioning this potential juror dispassionately about how that experience makes her unable to follow the law. If you do that, even though you are probably going to strike that juror, your defensive response to her will make the others dislike you, and will make it less likely that they will give you any more information.
I’ve seen prosecutors browbeat potential jurors after getting answers they don’t like; there’s no better way to make the rest of the panel hate you. If you disrespect someone who has said something you don’t like, you’re not teaching the others to agree with you but rather not to say anything you don’t like. You may not hear from the other two people on the panel who have lost loved ones to drunk drivers — until after they return a verdict against your client. The “bad” answers in voir dire are gifts.
What’s a better way to respond? If you think of voir dire as a first date, the answer will be plain: You’ve just heard about a terrible tragedy; acknowledge it: “I’m sorry. That must have been terrible for you.” Now you’ve engaged the juror as a human being; see where that leads. If you want to delve deeper into the subject, ask permission: “can we talk about how that affected you?” The answer will probably be “yes;” if it is “no,” give the juror a chance to change the answer later, and move on (you’ll probably get another chance to develop cause). If you have the juror’s permission to talk about her feelings about this horrifically traumatic experience, treat her with respect and she’ll practically excuse herself in the name of fairness.
Different sorts of “bad” answers require different responses. For example, if the “bad” answer is “I think the only reason someone would not testify on his own behalf at trial is that he is guilty,” you can play that off on other jurors: “That’s important. Thank you for telling me that. Who else feels the same way that Mr. Jones does?” If the “bad” answer is “I would testify if I were falsely accused,” the response might be: “I know a lot of us feel that way. Can you think of any reasons that the lawyer for the innocent person might choose for him not to testify?”
Talking to potential jurors is dancing into the fire. It’s easy to talk about, but the only way to learn it is to do it over and over.
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