Winning at Voir Dire: 54 Steps to Jury Selection Success
Look at the photo above. What do you see?
A) Lava
B) An Ocean
C) A Desert
D) Mountains
E) Something Else
Ask others what they see. You will find people view this photo differently. People view this photo based on what they have experienced in life.
In the context of voir dire, think about a hung jury.
The jury has just sat through and seen all the same evidence and exhibits; has heard the same opening statements and arguments; and, has been read the same jury instruction from the court. Yet the decision makers were unable to unanimously reach the same conclusion.
Why?
Because just as our life experiences influence the way we see the photo above, our life experiences influence the way we interpret the evidence. Each juror’s conclusion, whether guilty or not, was made through their worldview. Life has stamped a colored imprint on the lenses of each juror’s eyes. This footprint has been strengthened over time and is unlikely to change in just thirty brief minutes.
This is why, contrary to what lawyers are often taught, a jury trial is won or lost the moment the jury panel walks into the courtroom, not at the conclusion of voir dire.
Once the trial lawyer understands that, they are better armed to find and strike any juror whose worldview is inconsistent with an acquittal. The ultimate goal of voir dire.
This is how.
Pre-Trial:
- Review applicable jury charge for potential challenges for cause.
- Review applicable law for potential challenges for cause.
- Identify the emotional (hot-topic) issues of your case.
- Develop a summary of your case.
- Bounce that summary off family, friends, and staff.
- Narrow-down the issues non-lawyers find important.
- Focus Groups: useful to discern what issues may be important to a jury, that wouldn’t be to an attorney.
- Focus Groups: not useful to predict what your jury panel is likely to believe because each panel will be different.
- Know the type of juror you are looking for in the box.
- Have a theory to your case.
- Draft relevant questions.
- Practice your questions until they become natural.
Trial (prior to voir dire beginning):
- Have help.
- Have a jury seating chart.
- Know how jurors are seated in the courtroom.
- Get the jury information sheets as soon as possible.
- Immediately assign prospective jurors a rating (Leader/Follower; For Me/Against Me)
- If the ratings suggest, request a shuffle.
- Write out jurors by name
- Engage the panel from the start. Begin voir dire by providing a context encouraging full participation.
- Begin with questioning “Leaders – Against Me.”
- Spend time with jurors who may actually be reached.
- Best practice is to have someone else take notes, so you can give your full attention to the panel.
- Don’t explain things to the prospective jurors; let them explain things to you.
- Refer to jurors by their last name.
- Don’t argue with a potential juror: this is the quickest way to ensure individuals will not express their strongly held opinions.
- Ask “Loaded” questions. “People have strong feeling about the burden of proof in a criminal cases. Some people would require the state to prove their case beyond a reasonable doubt. Other people feel beyond a reasonable doubt is to too high a burden. They would require the State to prove their case by clear and convincing evidence.
- Ask “Winning” questions, “Can you think of some reasons why a child may lie? Winning questions allow the jurors to provide pertinent answers to the theory of your case.
- Refer to answers from jurors throughout the course of your trial (e.g. opening, cross, closing, etc.)
- No legal words.
- Don’t be afraid of unfavorable answers or “poisoning” the panel.
- Loop unfavorable answers for cause with “Who has a different opinion from {juror}?”
- Loop favorable answers for cause with “{Juror} has said . . ., who has a similar opinion?”
- “Tell me more about that . . .”
- “Is it fair to say . . . “
- Ignore the good.
- Identify and engage the bad.
- “Can you think of any other reasons . . .”
- Thank jurors for their honest opinions.
- Protect the record. Identify juror’s head nods and answers by name.
- When challenging for cause (at bench) remind the juror what he or she previously said.
- Follow up with “Are my notes accurate?”
- Nail the strike down: “Is it fair to say that regardless of the law, the facts, or the judge’s instructions that you . . .”
Preemptory Strikes:
- Ask all decisions makers (see #12) to make a list equal to the number of preemptory strikes. No discussion at this point.
- Compare numbers.
- Use a preemptory strike on any juror who shows up on every list.
- If strikes remain, discuss.
- “Leaders – Against You” are struck first.
- “Leaders – Questionable” are struck second.
- “Followers – Against You” are struck third.
Additional Tips:
- Rid of jurors that have a point of view inconsistent with an acquittal in your case.
- Understand jurors make up their mind and then justify their decision.
Happy jury selection and good luck.
Harris County Misdemeanor Marijuana Diversion Program
Effective March 1, 2017, the District Attorney’s Office will unveil the Harris County Misdemeanor Marijuana Diversion Program (MMDP). This program aims to give citizens a chance to avoid misdemeanor marijuana arrests and convictions by completing a 90-day program while also seeking to use resources of the Harris County Criminal Justice system more effectively and efficiently.
To be eligible for participation in the Harris County Misdemeanor Marijuana Diversion Program a person must:
- Be 17 years or older;
- Be found to have four ounces or less of marijuana;
- Possess sufficient identifying information at the time of detention (stop);
- Have no additional criminal charges arising out of the instant detention. For example, a person found in unlawful possession of marijuana and Xanax would be ineligible;
- Have no outstanding warrants;
- Not currently on bond, deferred adjudication or probation for a Class B offense or greater; and
- Be stopped and detained in Harris County (Montgomery County, Waller County, Liberty County, Galveston County, Ft. Bend County, Chambers County, and Brazoria County do not apply).
Note: A person will still be eligible to participate if they have a prior criminal record and/or if they have participated in the program before.
A person is not eligible for the Harris County Misdemeanor Marijuana Diversion Program if:
- They are on bond, deferred adjudication or probation in Harris County or another jurisdiction for any offense other than a Class C (e.g. speeding ticket);
- Officers determine the person possesses marijuana with the intent to deliver (i.e. be careful how much cash you have);
- Is in possession of a concealed handgun and marijuana without a valid Concealed Handgun License (CHL). In this instance the person, assuming all other requirements are met, will only be charged with the Unlawful Carrying of a Weapon;
- Possess four ounces or less in a “drug-free zone”;
- Possess four ounces or less in a corrections facility;
- Is currently enrolled in the MMDP program; or
- Is found with cannabis wax, cannabis oils, etc. (these are controlled substances under Texas law and a felony).
Note: The officer can still detain and arrest you for driving under the influence of marijuana if probable cause exists that you were driving while intoxicated through the introduction of drugs.
Harris County Misdemeanor Diversion Program Requirements:
The Marijuana program requires a person to:
- Sign up for and complete the 4-hour MMDP cognitive decision-making class within 90 calendar days of his or her arrest;
- Not break the law before completion of the course (i.e. do not get arrested for another offense before the 90 day period is up); and
- Pay a $150 program fee.
MMDP Program Procedure:
When a person is stopped, and an officer finds a misdemeanor amount of marijuana, the officer should contact the Harris County District Attorney’s Office to confirm 1) probable cause exists for the detention (i.e. “the odor of marijuana”) and 2) if the person is eligible for the MMDP program. If the person is eligible, the officer will not make an arrest but instead will offer an agreement stating the marijuana program’s requirements and ask the person to sign. After signing the MMDP form, the person is released. If the person refuses to sign the MMDP form, they will be arrested, booked, and charged as if the program did not exist.
Once the person successfully completes the marijuana diversion program, no criminal charges will be filed and no criminal history of the event will exist. If the person agrees to but fails to complete the diversion program a formal criminal charge will be entered and an arrest warrant will be issued.
For Harris County misdemeanor marijuana cases filed before March 1, 2017
If you have been charged with possession of marijuana, 4 ounces or less, before March 1, 2017, you may still be able to take the class and have your case dismissed. Though as of this writing, the answer has not been finalized.
For additional questions feel free to contact our office, the Adamo & Adamo Law Firm at 713-237-8380 or email us at [email protected].