How to Conduct Effective Voir Dire - ABA YLD 101 Practice Series

By Alyson G. Barker

The role of attorneys in conducting voir dire varies by court and locality. Nevertheless, adequate preparation for voir dire is essential no matter how minimal the attorney's role. Voir dire is the first opportunity you will have to get prospective jurors to accept your client's arguments, and it is your only opportunity to obtain juror feedback prior to the verdict. The following checklist is a guide to thorough preparation for this important stage of the trial:

  • Read the rules. Familiarize yourself with the local rules of the court. Some judges prefer to conduct voir dire without any input from the attorneys, while others allow the attorneys complete control over the process. Many courts conduct some of the voir dire and then allow the attorneys to follow up with written questions. Learn the number of peremptory challenges that you will be allowed and in what order challenges will be made. For example, learn whether the court requires the plaintiff to make all of his challenges before the defense or whether there will be a back-and-forth with each party making one challenge at a time.
  • Develop the theory of your case. Voir dire is an opportunity to identify jurors that will be fair to your client. It is important to have an understanding of the arguments and analogies you will put forth in order to identify attributes that may make a potential juror more amenable to your case.
  • Determine whether you need to conduct a mock trial. Depending on the size of your case and the financial resources of your client, it may be useful to conduct a mock trial or to hire a jury consultant. A mock trial gives you the opportunity to see how jurors may react to your case so that you can identify which attributes you want on your jury. Trial consultants can also be used to identify characteristics of potential jurors that will be more likely to identify with your client or your opponent.
  • Create a list of attributes of your ideal juror. During voir dire, you will have to make snap decisions about which jurors you want removed from the case and which jurors you want to keep. To help with this decision, make a profile of the characteristics and life experiences that your ideal juror would have and a profile of your "nightmare" juror. For example, if you are defending your client against charges that he was speeding when he crashed into another vehicle because he was running late to work, you may want to exclude jurors who are punctual or who have been hit by speeding drivers. Your list of attributes should encompass as much information as possible so that when the time comes to weigh the pros and cons of having each individual join the jury, you can make a quick assessment.
  • Develop questions for the jurors. If allowed under local court rules, you should develop an extensive questionnaire that will help you determine which jurors should receive follow-up questions. The questionnaire is your opportunity to identify those jurors that most closely fit your list of attributes. The questionnaire should ask open-ended questions about the jurors' family, education, work, interests, involvement in the legal system, involvement in social organizations, knowledge of people involved in the case, and exposure to pretrial publicity. If the court does not allow questionnaires, this information should be obtained during oral questioning.
  • Prepare and deliver a summary of your case. If allowed under local court rules, at the beginning of voir dire you should give the jurors a summary of the case. Start by introducing yourself and your client. Personalize your client by telling him to stand to face the jury. If the client is a corporation, introduce the corporation's CEO or president so that the jury can see a human being behind the corporate entity. Your case summary should present a positive rendition of the case and should be sufficiently detailed to establish a foundation for further questioning about the jurors' opinions of the case. At the conclusion of your summary, state what you seek to prove and the relief you will seek. 
  • Question the jurors. When questioning the jurors, ask open, nonleading questions to elicit as much information as possible. This is your opportunity to develop a relationship with the jury. Do not ask questions that will embarrass jurors or make them feel like they are on trial; defensive jurors will be unlikely to share as much information with you and may harbor resentment towards you and your client if selected. Furthermore, when questioning one juror, also pay attention to how other jurors respond to you. The other jurors may have nonverbal reactions to your questions that will give you insight into their thought process.
  • Solicit jurors' attitudes about the case. After you have obtained background information, follow up with questions designed to elicit the jurors' opinions and attitudes about the case. For example, you might ask, "Based on what you know about the case, do you feel you shouldn't be able to sit on the jury?" Some jurors do not want to take the time to serve on the jury even though they could be fair if forced to serve. Do not immediately take the bait when a juror gives you this answer. Follow up with more specific questions to determine whether the juror is just making up an excuse. If, after some preliminary questions, you feel that the juror has a legitimate bias that will prevent him from being fair to your client, you might ask the judge to allow you to conduct in camera questioning outside of the presence of other jurors in order to prevent that juror from tainting the jury pool. 
  • Commit jurors to key legal principles. At the conclusion of questioning, you should take the opportunity to commit the jurors to key legal principles. Most importantly, get them to treat your client fairly when evaluating the case. Make sure that they are willing to impose the proper standard of proof when reaching a decision, and have them commit to an understanding of the jurors' duty to make a decision based on the law and the evidence presented.
  • Exercise "for-cause" challenges. The purpose of voir dire is to select a fair and balanced jury. If you determine that a juror does not meet the statutory requirements to serve on a jury or cannot be fair, you may want to challenge him for cause. There is no limit to the number of for-cause challenges that you can make. In an ideal situation, the judge will allow you to make these challenges during a sidebar to prevent tainting remaining jurors or offending the juror you are trying to remove. If the judge will not allow a sidebar, be tactful. Rather than "challenging" the juror, ask the judge that the juror be "excused." Instead of calling the juror a racist, state that the juror has expressed views that may make it difficult for him to decide the case objectively. Although it is important to tread carefully when challenging a juror, make sure to state all of the particular grounds for doing so. Any grounds not stated will be deemed waived on appeal. Furthermore, before challenging a juror for cause, make sure that you have remaining peremptory challenges available so that you can still remove the juror if the for-cause challenge is not successful. If you are opposing a for-cause challenge, ask the judge for an opportunity to establish the juror's fairness. This should be done with follow-up questions during which the juror commits to treat your opponent fairly despite a perceived bias.
  • Exercise your peremptory challenges. Peremptory challenges can be exercised without cause unless there is an apparent racial or discriminatory motive. As you would with for-cause challenges, request that the judge allow you to make all peremptory challenges during a sidebar to prevent offending remaining jurors. Remember that although you don't have to give a reason for peremptory challenges, if the judge suspects that it is for a discriminatory purpose, you will have to be prepared to articulate a neutral reason. If you suspect that your opponent has made a peremptory challenge on the basis of race, be sure to object in a timely manner. Furthermore, make a record of the jury pool to establish that there was a pattern in your opponent's peremptory challenges. 

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About the Author

Ms. Barker is an associate at Howrey, LLP in its Irvine, California office. Ms. Barker can be reached at BarkerA@howrey.com.

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