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.