Criminal Defense

Voir dire is the one and only opportunity that you will have to communicate directly with the jury. You should use your time wisely. The jurors will have plenty of time during the trial to listen to you; use your time during voir dire to listen to them.

You should treat your time with the jury panel as an intelligence gathering session instead of a lecture session. In the name of judicial economy, courts have shortened the amount of time available to the point that it is almost impossible to do an adequate job.

For a judge in a DWI case, twenty minutes may seem to be way too much time to let the lawyers talk to the panelists. But for the defense attorney and the citizen accused it is nowhere near enough time to gather the information necessary to make intelligent decisions about how to exercise strikes.

All too often I see attorneys (on both sides) waste precious time building their cases and lecturing to jurors about the purpose of voir dire, the law and the burden of proof, instead of asking the panelists about their personal experiences, feelings and beliefs.

By now we should all be familiar with the “80/20 rule.” The “80/20 rule” states that in any activity, 80 percent of the output is produced by 20 percent of the input. The rule can be applied to almost any situation. In an organization, 80 percent of the work is performed by 20 percent of the people. In time management, 80 percent of your time is invested in 20 percent of your activities. In management, 80 percent of the problems are caused by 20 percent of the people.

This same rule can be applied to voir dire. If you pay attention to a jury panel you will see that about 20 percent of the jurors answer about 80 percent of the questions. To combat this you need to make certain that every panelist has the opportunity to speak. Never allow a panelist to make it through voir dire without answering any questions.

You should spend at least 80 percent of your time listening to the jurors and no more than 20 percent speaking. You know how you feel about your case; spend your time finding out how your prospective jurors feel about the issues.

One way to get everyone on the panel to participate is through the use of scaled questions. A scaled question is either a question or a statement you pose to the panel while asking them to give you a number within some range, 0 to 10, for instance. With a scaled question you get more than a yes-no answer. If you ask enough scaled questions during voir dire you can accumulate a lot of information in a relatively short period of time. In a twenty-minute voir dire, I try to pose three or four scaled questions to the panel. That way I know I’ve heard from everyone at least three to four times.

Scaled questions also give you an excellent tool for making your juror strikes. When you draft your scaled questions, write them in such a way that all favorable answers are either low or high. That way you can check at a glance to see whether or not that person might be a favorable juror.

Avoid yes-no or true-false questions at all costs during voir dire. You should always ask open-ended questions. If you ask a yes-no question, always follow it up by asking the juror why they feel the way they do. If the juror gives you an answer that you like you can always ask the next juror in line whether or not they feel the same way and why. If you get an answer you don’t like, be sure to thank the juror for their honesty and candor. You may not have liked what you heard, but at least you have identified an unfriendly juror.

When posing questions to the jury, try to personalize the questions. Don’t ask the panel an abstract question – put the juror, or a family member or friend, in the situation. If you want to personalize your client to the jury, you have to personalize your questions and hypotheticals.

You need to take control of the panel. Don’t allow a couple of jurors to dominate your time. When asking questions, pick the jurors whom you want to answer. I like to keep it simple and just go up and down the rows, that way I know I’ve spoken to every juror. If one or two jurors try to dominate, just let them know that you appreciate their participation but that you need to speak with everyone.

Don’t be afraid that your “ideal” juror is going to expose himself to the other side by answering questions. Chances are that if you’ve identified someone as an ideal juror for your side, the other side has done the same thing. If you find such a juror, use them to educate the rest of the panel on your issues. You will find that jurors are much more likely to be persuaded by a fellow juror than by you.

Finally, try to keep jargon, technical talk and “legalese” to a minimum. You want to have a conversation with the panel. Using terms of art during voir dire will only serve to drive a wedge between you and the jurors.

Your ability to listen and gather information during voir dire can be the difference between a one- and two-word verdict. More importantly, it can have a life-changing effect on your client.