Seasoned jury expert shares secrets of voir dire and jury selection
Jeffrey T. Frederick
The voir dire and jury selection process is one of the most challenging aspects of a jury trial, says Jeffrey T. Frederick, director of the Jury Research Services Division of the National Legal Research Group. “Having a list of questions to ask is only a starting point,” he explains in his new ABA-published book, Mastering Voir Dire and Jury Selection, Third Edition. “Conducting effective voir dire and jury selection requires developing strategies that secure the necessary information and adapt to the unique circumstances that lawyers face in their trial jurisdictions.”
To help lawyers develop those strategies, Frederick recently met with YourABA, sharing advice from his 37 years of providing jury research services.
What are some of the most common mistakes that lawyers make when it comes to voir dire and jury selection?
Probably the most common mistakes lawyers make are focusing too much on the questions being asked (and perhaps advancing a position), and not focusing enough on getting the jurors to talk and not listening to what they are really saying.
In order to be effective in jury selection we must understand how jurors think and feel and what impact that will have on the case. This understanding is achieved through the use of effective communication skills and developing questions that encourage jurors to answer in an open and honest fashion.
You point out that one of the most important goals of voir dire is information gathering. What kinds of questions or techniques are most effective at getting jurors to reveal information about themselves?
There are a number of techniques that lawyers can employ to foster greater information disclosure by jurors. For example, asking open-ended questions like “How do you feel about ...” or “Tell me about your thoughts on ...” encourage jurors to think and provide more informative answers than your standard yes-or-no-type question. Using the simple technique of “normalizing” a potential answer to a question—for example, “Many jurors have said that ...”—encourages jurors who agree with the question to respond because the answer is acceptable to at least “many” jurors. When asked in a group setting, normalizing the answer can set the juror’s expectation that he or she will not be alone in responding affirmatively to the question.
Also, avoid words or phrases that lead to the “looking good” or socially acceptable response bias. Asking jurors if they can be “fair and impartial” or if they harbor any “bias” or “prejudice” pretty much telegraphs what the acceptable answer is. Not only are jurors reluctant to admit such negative characteristics, they oftentimes are unable to recognize bias and prejudice in themselves.
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You say that voir dire is an excellent time for persuasion, since jurors aren’t expecting it so early in the trial process. What can lawyers do to foster persuasion?
One of a number of persuasion techniques I consider in the book is the simple technique of focusing on desirable issues in order to frame the debate. For example, take a case where the plaintiff’s lawyer wants to gauge the willingness of jurors to return a large award sufficient to enable the plaintiff to live in her home. Why not gather this information while also setting a persuasive frame for it? Asking jurors, “How many of you would not have any reservations returning money damages sufficient to enable an injured person to stay at home versus being placed in an institution?” provides the desired information and places the case in a favorable context for the plaintiff.
What are some early warning signs of a difficult juror?
Difficult jurors are those jurors who either don’t like you, or don’t like your client or the client’s case. These jurors often hold biases that if revealed would make them eligible for a challenge for cause or a peremptory challenge.
Some early warning signs include unfavorable nonverbal communication during the judge’s introductory remarks or the initial stages of voir dire, possession of “red flag” backgrounds and experiences, initial slightly unfavorable opinions, and association and interaction with “known” undesirable jurors. By identifying potential difficult jurors early, one can structure voir dire questioning to encourage the expression of these jurors’ true opinions and increase the likelihood these jurors can be effectively removed from the jury.
You describe a situation called “negative spiraling,” where lawyers are facing jurors who are not providing open, candid answers. How can lawyers deal with negative spiraling?
Negative spiraling usually occurs during prolonged group voir dire questioning, where early answers or responses from jurors are relatively open and candid, and later jurors become less willing to participate in an open and candid manner, particularly in response to sensitive issues.
It is imperative that lawyers break such negative spiraling early in the process. For example, when jurors start to answer in less informative ways, such as short answers, the use of pat phrases (“I will have to wait until I see the evidence”), or quick agreement with other jurors’ answers, several techniques can be used to break the cycle of superficial responses.
Lawyers can show empathy for jurors having to answer questions in open court, thus fostering increased disclosure. Also, lawyers should reassert control over the process by not letting jurors get away with superficial answers. When jurors give superficial answers such as, “I agree with juror number 1” or a quick yes or no answer, encourage them to elaborate on their answers with follow-ups such as “In what way?” or “Could you tell me a little more about your thoughts on this?” Jurors soon understand that superficial answers will not be accepted and the negative spiral is broken.
What can be done to minimize the threats posed by jurors using the Internet?
The threats and opportunities posed by the Internet in jury trials is a hot topic right now. I devote a chapter to this topic because it is so important. There are numerous opportunities to obtain information relevant to jury selection from the Internet through online searches, online data bases and social networking websites, among others.
But beyond these opportunities are real threats. Jurors have been found searching the Internet for case-related information and legal definitions, watching media coverage of the case during their service, visiting victim websites, posting or tweeting their opinions about trials for which they are jurors, and communicating with their fellow jurors during trial. Numerous findings of juror misconduct have led to mistrials and even sanctions against jurors.
Meeting these threats is a serious challenge. There are several approaches that need to be taken. These approaches include finding out what information relevant to the case is available to jurors on the Internet; establishing the jurors’ “footprint” on the Internet by ascertaining through voir dire and juror questionnaires the jurors’ presence and use of Internet resources; developing effective instructions concerning appropriate and inappropriate uses of the Internet by jurors, using concrete examples, Internet vocabulary, and stating the consequences arising from the inappropriate use of the Internet; and monitoring juror activity on the Internet, where possible, to discover any inappropriate usage by jurors.
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What are some good strategies/best practices around exercising peremptory challenges?
There are two basic methods for exercising peremptory challenges, the sequential method and struck method. Each has its unique features. However, there are some general principles that can help. Let me give an example for each method in terms of removing “bad” jurors.
In the sequential method jurors are questioned in panels by each party. The lawyer questions, excuses and replaces jurors until a full accepted panel is passed to the other party. Lawyers should question the panel and remove the minimum number of worst “bad” jurors the judge requires (provided that by doing so the remaining jurors are not “passed” or accepted) and see who replaces the juror or jurors. This small step approach allows greater control over who leaves and who enters the jury box. In this manner, you can most effectively exercise peremptory challenges and have the best chance to remove “bad” jurors without seeing even worse jurors take their places.
How about the struck method?
In the struck system all jurors are screened and peremptory challenges are not exercised until the pool of qualified jurors equals the number of jurors needed plus the number of peremptory challenges available to the parties.
In this situation it is important to make a two-tiered list of the worst “bad” jurors in the pool. The top tier should contain names/juror numbers of the worst jurors equal to the number of peremptory challenges you have. However, this list should be ordered in terms of how obvious it is to the other side that the juror is bad for you.
The second tier of the list should contain a few more jurors who, after the top-tier jurors are removed, should be removed, if possible. However, this second-tier list should be ordered in terms of starting with the next worst juror and continuing in this fashion. By structuring a two-tier list in this manner, you take advantage of errors made by your opponent and, in essence, potentially gain one or more additional peremptory challenge(s).
Your book takes a real soup-to-nuts approach to voir dire and jury selection. It covers everything from preparing for and conducting voir dire, to insights on jurors’ nonverbal behavior, advice on the Internet and jurors, as well as addressing challenges for cause and peremptory challenges. You even have appendices that provide extensive lists of voir dire questions for both civil and criminal cases, and a CD with more than 130 supplemental juror questionnaires. What do you want to achieve with this book?
I have been selecting juries and conducting research with jurors for more than 37 years. My goal with this book is to provide lawyers with the necessary tools to understand whom they face as jurors and what they need to know and how to get it as a result of the voir dire and jury selection process.