Voir Dire: Top 10 Do’s and Don’ts in Selecting Your Jury

Robert R. Rose, III
Many mistakes made during the course of a trial may be corrected, but when they’re made in voir dire, they can be—and usually are—fatal.

Many mistakes made during the course of a trial may be corrected, but when they’re made in voir dire, they can be—and usually are—fatal.

Chris Ryan via iStock

Having spent nearly 40 years in the courtroom, both in the criminal and personal injury arenas, I’ve learned a thing or two about the jury selection process. At its best, it is akin to hitting the “sweet spot” on a baseball bat or a tennis racket. It just feels right. Things go precisely where you want them, people seem pleased with your performance, and you feel you are in complete control of your environment. At its worst, it resembles nothing short of a calamity of biblical proportions. A swift death would be the only event that could mercifully cap off the day.

Anyone who has ever tried a case to a jury knows all too well “the thrill of victory and the agony of defeat.” Nowhere is that more evident than the jury selection process—voir dire. Voir dire is without question the most difficult, complex, and most critical part of a jury trial. Many mistakes made during the course of a trial may be corrected, but when they’re made in voir dire, they can be—and usually are—fatal. And here’s the worst part of it: they’re typically self-inflicted. Your opponent never outperforms you; you defeat yourself.

A successful voir dire requires a tremendous amount of preparation. Counsel must have a thorough understanding of their case, and particularly of its weaknesses. They must also possess a keen sense of human behavior and group psychology. However, more than anything else is the need to understand that jurors deliberate and decide cases based on emotion, not logic. Therefore the key to voir dire lies in establishing the emotional foundation of your case. One comprehensive and useful resource to learn this skill is the Trial Practice Manual for Criminal Defense Lawyers.

At the risk of grossly oversimplifying a skill that requires painstaking preparation, significant emotional investment, and years to perfect, I submit the following five things you should not do and five things you should do to help you improve your voir dire game.

DO NOT

  1. Wing it. This is the most significant mistake attorneys make. They feel that all they need to do is stand up and ask a few pat questions related to absolutely nothing. Suddenly they will be endowed with the supernatural ability to determine which of the venirepersons will be most favorable to their cause.
  2. Do all the talking. If you are talking, you are not listening. Your biggest challenge in voir dire is to get the jurors talking to you as quickly as possible. You need to know how they feel about the weaknesses of your case. That’s what they’ll talk about in their deliberations.
  3. Talk like a lawyer. Jurors are not impressed with your command of legal phrases, your GPA, or where you went to law school. The essence of voir dire is honest, real communication. Think Hemingway.
  4. Argue with a juror. You are not there to confront them or change their minds. A juror’s expression of his or her honest feelings about your case is a gift. Your rejection of it alienates not only that juror but the rest of the panel.
  5. Use hypotheticals. They’re usually a waste of time. You don’t have time to waste. Generally speaking, courts don’t like voir dire, so they are reluctant to give you much time to do it. You must be able to get where you need to be quick. The name of the game is quality of information, not quantity. If you need to know how the jury feels about something important to you, ask them directly.

DO

  1. Prepare, prepare, prepare. The earlier you start before trial, the more time you have. What makes voir dire so frightening is the fear of not knowing how to handle a “bad news juror.” How to properly handle a juror who rejects your case is critical. You must accept his response, clarify it, and then commit him to it so the court cannot rehabilitate him. You want that juror off the panel, so you strike him for cause by reinforcing the strength of his honest beliefs. It’s a win-win for you. All of that takes time to prepare.
  2. Craft questions designed to evoke responses that reveal the jurors’ feelings about the facts essential to your case. They’re easy to identify—they’re the ones you’re worried about. Since the jurors will discuss those facts, you want to know at the outset how they feel about them. You’re looking for the “bad news.” You’re not interested in jurors who like you; you want to identify those who don’t. You need to get them off the panel.
  3. Use ordinary, plain language. Talk to the jurors like you’re with your best friends in your living room or at a bar. Cut to the chase. You must develop a “trust relationship” with the jurors. You do it by being honest about the weaknesses in your case and then asking them how they feel about them. You are exposing your throat to them, trusting that they will not hurt you. As long as you’re honest, they won’t. They’ll respect your courage and your belief in them. They will trust you.
  4. Know what you need to know. Don’t waste time talking about what you’d like to know or what you want to know. The clock is ticking. A typical case can usually be boiled down to one or two critical factors. Concentrate on those. Forget everything else.
  5. Be the leader. You want the jurors to follow you. Lead them to where you need them to be. Be honest and truthful in all responses. They will trust you and what you tell them.

Remember that no matter what, the jury is always right. They represent between 300 and 900 years of combined human experience. If they decide against you, it’s not because they missed something. You did.

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Robert R. Rose, III operates his own criminal jury trial consulting business. He’s a former public defender and county prosecutor and spent many years in private practice specializing in personal injury and criminal defense. He’s the former director of the Western Trial Advocacy Institute, a former adjunct professor at Laramie County Community College, a former magistrate, an instructor and team coach of the WTLA Robert R. Rose Jr. Annual Voir Dire Competition, an instructor at the University of Wyoming College of Law Summer Trial Institute, and a trial consultant. He’s the author of Trial Practice Manual for Criminal Defense Lawyers, published by the American Bar Association.