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E. CONDUCTING VOIR DIRE - MN Bench Book - Trial Procedures & Practices for Judges
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E. CONDUCTING VOIR DIRE

From MN Bench Book - Trial Procedures & Practices for Judges

CONDUCTING VOIR DIRE --COMMON SENSE RULES AND PERSPECTIVES FOR ATTORNEYS SELECTING A JURY

1. OVERALL PERSPECTIVE

A. Know the proper purposes of voir dire and stay within the bounds of those purposes. .
B. Understand that jury selection is a highly subjective process. It is a weak art rather than a science. It is basically a matter of "educated guesses."
C. Discard stereotypes based on race, gender and ethnicity. Many jury studies, have shown such stereotypes to be highly unreliable.
D. Don't assume that the case is won or lost on voir dire.
E. Remember that you don't really get to "select" a jury; rather you get to "eliminate" the least acceptable panel members.
F. Listen to panel members' answers. They will provide valuable clues for selection. Simply to exhaust a list of a certain number of questions is not sufficient. "Reading" the answers through careful listening and observing is critical.
G. Respond to an answer to your question with a follow up question about the answer. This conveys that you are paying attention to their answers and are interested in what they have to say.

2. SPECIFIC DIRECTIONS AND GUIDANCE

a. Your guiding principle should be: "A fox should not be one of the jurors at the goose's trial." (Thomas Fuller)

b. With that guiding principle seek to detect the foxes and to eliminate them through challenges for cause or peremptory challenges.

c. Either of two general approaches to jury selection can be used:

(1) "Clean slate" approach

(a) The idea is to try to eliminate any panel member who has anything in common with the case. For example, in a personal injury case involving a neck injury, the clean slate approach would try to eliminate prospective jurors who have had neck injuries or whose family members have had such injuries.

(b) The rationale is twofold:

[1] You cannot tell whether that background will favorably or unfavorably dispose the panel member to your case. Therefore, you do not take the risk.

[2] You can educate the clean slate juror to your position without first having to overcome the obstacle of information and attitudes gained from his or her prior similar experience.

(2) "Predisposed Jury" approach

(a) The idea is to try to eliminate panel members who seem to be predisposed to find against your client, and, conversely, retain members who might be disposed favorably toward your case.

(b) the jurors retained are not necessarily "clean slate jurors but are persons who share some commonality with the client, the case or the issues.

d. Focus on tangible factors:

(1) Demeanor (but remember that body language can be ambiguous)

(2) Dress and appearance

(3) Tone of voice

(4) Manner of answering questions

(5) Apparent intelligence

(6) Apparent attitudes

e. Look for "red flags," that is, things that give you a "gut feeling" that this person should not serve on your jury. For example:

(1) Demeanor: Watch out for the fidgety, impatient, easily distracted or bored panel member.

(2) Dress and appearance: All jurors have had reasonable prior notice of jury duty. Thus look for people who are dressed inappropriately for court. This does not mean people should dress up for court, rather people's dress should reflect that they are participating in a serious process. Watch out for the person who is dressed too casually or immodestly. If he or she doesn't care about how he or she looks in court, why should that juror care about your case?

(3) Tone of voice: Watch out for the defensive or sarcastic member or the know it all.

(4) Manner of answering questions: Watch out for the evasive member or the member who is unwilling to give a clear answer unless cross examined. Also watch out for the individual who wants to make a speech or to get something off his or her chest. This person has an agenda and is likely to impose it on the case.

(5) Intelligence. Avoid persons who simply don't seem to comprehend what's going on. Caveat: Educational level is not determinative! There are many wise and astute elementary school dropouts and an equal number of dense and intellectually limited Ph.D.'s.

(6) Attitude. Avoid the juror who resents being here or who is not sure that he or she likes the system. Be skeptical of the juror who is overly eager to serve. The concern with the latter is that he or she might have a personal agenda of sorts and might not follow the law.

(7) Prior recent jury experience. When jurors are summoned for a one-week or two week period, they could be called to serve on two or three short cases. Sometimes they get "sophisticated" and feel that they "know how it should be done."

Keep in mind that the foregoing tips are generalizations and should never be taken as absolutes. As to each panel member the lawyer should think and look and feel before deciding to retain or eliminate.

f. Watch your language.

(1) Avoid legalese.

(2) Avoid technical language pertaining to the subject matter of the case. For example, don't ask: "Has anyone ever suffered a compound 'Comminuted fracture of the distal portion of the femur?"

(3) Avoid asking about "prejudice." Most people don't want to believe that they are prejudiced. Use instead words and phrases such as "opposed to," "disagree with," "have problems with;" "uncomfortable about," "have bad experiences with."

(4) Don't try to ingratiate yourself with the jury by being chatty or by trying to be just one of the boys or one of the girls. This leads to the illusion of rapport and it is a lawyer's delusion. Be candid and professional.

(5) Be courteous. Don't lecture or make speeches or scold.

(6) Be careful about putting jurors on the spot. Scrupulously avoid questions that make jurors feel that their ignorance will be exposed or that you are trying to show that they are not as smart as you. Never, get into a cross examination mode. Many attorneys unconsciously go into a cross examination mode when conducting voir dire, arguing with panel members and trying to intimidate them. The following question is of that nature. Not only is it improper (to be explained later) but as a practical matter it is inadvisable:

"Mrs. Smith, the judge will tell you that the plaintiff must prove his case by the greater weight of the evidence. What does that mean to you?"