MARCH 2019 | AROUND THE MIDYEAR MEETING

11 must-dos from a voir dire master

For both prosecution and defense lawyers, voir dire can work to identify jurors who can be fair and impartial, rather than unfair and biased.

Jeffery T. Frederick, director of the Jury Research Services National Legal Research Group, Inc., in Charlottesville, Va., spoke about selecting a jury and engaging jurors in the process during the program “Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury” held Jan. 25 at the ABA Midyear Meeting in Las Vegas. Moderating the program was attorney Alan Olson of the Olson Law Office, P.C., in Des Moines. Olson also serves as budget officer for the ABA Solo, Small Firm and General Practice Division, which sponsored the program.

Frederick has written extensively on jury selection, including three books on the topic. In understanding who would be good or bad jurors for your client, Frederick recommends doing a case analysis of the prospective jurors, whom he calls decision-makers. That analysis involves three main components:

  • Backgrounds. What backgrounds do jurors have (e.g., their occupations, educational background and training, socio-economic status, media viewing habits and internet footprint and usage, among other background characteristics) that may affect their decisions in the case?
  • Experiences. What experiences do jurors bring to the case (e.g., being a victim of a crime or involvement in prior lawsuits) that can affect how they view the case, evidence, witnesses and parties?
  • Opinions, beliefs and values. These are the most important things to know about jurors, because they will serve as the framework or filter through which the jurors will view the case.

“You’re looking for people who need to be removed (from the jury pool) and your questions should be designed to uncover those who should be removed,” Frederick says.

Frederick provided 11 tips on how to effectively conduct voir dire:

  1. Adopt the proper orientation. Approach your voir dire questioning as a “conversation,” not a job interview. Be confident, reinforce juror participation and listen to jurors to yield the best results.
  2. Set the stage for jurors. Explain the process, stressing honesty and candor and helping jurors acknowledge the filters and biases we all possess.
  3. Get them talking. Successful voir dire requires that jurors talk (and not just listen to the attorneys talk at them). Using techniques such as the initial background summary (where all jurors answer three to five basic background questions) and having all jurors raise their hands will increase participation by jurors at the start of voir dire.
  4. Ask open-ended questions. Open-ended questions (e.g., Why? and “What are your views on . . .?”) provide more information than closed-ended questions (e.g., agree/disagree or yes/no questions).
  5. Avoid the Socially Desirable Response Bias. Questions that include phrases that trigger the “looking good” response from jurors (e.g., “fair and impartial” or “bias or prejudice”) should be avoided where possible because these phrases inhibit honest and candid answers.
  6. Focus on difficulty vs. ability. Jurors are more willing to acknowledge difficulties in doing something than in their ability to do it. Using questions that focus on difficulties and not abilities gives jurors an opportunity to admit where they would have problems.
  7. Use alternative route to uncover bias. Jurors have difficulty recognizing and admitting their biases. Focusing on the behavioral manifestations of bias (e.g., give less weight or need more evidence) provides an alternate and more useful route for uncovering bias.
  8. Design questions using “bad” answers. If there is reason to believe that some jurors hold certain negative opinions that have not been revealed, be sure to ask about them.
  9. Harness the power of “reflective” questions. Using questions that ask jurors to reflect on how certain factors might affect their decisions (reflective questions) are more likely to uncover bias than questions that simply ask if certain factors would affect their decision (nonreflective questions).
  10. Keep jurors participating. Use techniques that encourage participation as the questioning process continues. Two useful approaches to revitalizing participation are: (a) interspersing majority response questions and (b) using the springboard method where you ask one juror a question and use the answer to talk with other jurors about the topic.
  11. Be persistent. Don’t let jurors hide. If some jurors are not participating in voir dire, ask them directly for their views so that you know what they think and all jurors know that they can’t hide from the questioning.

Beyond the questions, Frederick says you have to pay attention to the juror’s nonverbal communication. “Based on research on nonverbal cues to deception, pay attention to signs of anxiety and general positive or negative affect,” he says. “Rule of thumb: look for deviations in the potential juror’s behavior.”

Look for such visual cues as body movement, body orientation, body posture, shrugs, eye contact and facial expressions. Also look for auditory cues, including voice pitch, tone, vocal hesitancy and word choice.

Another key to look for is leadership and group dynamics. Forepersons tend to be drawn from higher status occupations, those with prior jury service, those with relevant experience, those with leadership experience, those who exhibit stronger responses during voir dire and those who blog or maintain online personal journals.

But he warns to be aware of jurors who could “hang” the jury. Red flags are social isolates, opinionated, interpersonal insensitivity and job characteristics. “Jurors with jobs characterized by independence and self-reliance in decision-making are less likely to be influenced by other jurors,” Frederick says.

Technology also has a role in the jury selection process. Frederick says the internet and its tools provide both sources of information for jurors and on jurors.

He says attorneys (or paralegals, trial consultants, etc.) need to conduct internet searches on potential jurors. “There is a lot to be gained from such searches and all parties are moving toward making this a common practice. However, properly conducting these searches, while seemingly simple, is more challenging than simply doing a search through the Facebook search tool bar.”

Attorneys also need to scrape (basically copy and paste) comments/replies/emotional reactions (e.g., likes) posted to media stories relevant to the case and relevant entities because these actions will not show up on searches through search engines or on Facebook searches.

There is often a limited amount of time to conduct the searches themselves. The jury list may not be available more than a few days before trial and, in some cases, is only available when voir dire begins.  This can put quite a burden on attorneys who are preparing for trial, Frederick says.

Despite the challenges, he says there is often valuable information to be gained by such searches.

“Combining this with limited voir dire conditions and the potential for some jurors to not answer candidly during voir dire, internet/social media searches are becoming a necessary fact of life in contemporary litigation.”  

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For more, download Legal Talk Network’s podcast with Frederick discussing best practices for getting potential jurors to open up for a better selection process.