Ped’ Proof: Voir Dire is Voodoo

At the end of each day at ITAP, lawyers put on a demonstration of what they students will be doing the following day to show them how it’s supposed to be done and provide some inspiration.  Today is voir dire day at Cardozo Law School, which means that yesterday was the demonstration of how to pick a jury.

The mechanism used was interesting.  It was a mock state court jury selection (since there’s no point in ever doing a mock federal court jury selection), with twelve students in the box.  They filled out questionnaires in advance, which already takes it outside the realm of normalcy, though the questionnaire asked the typical questions that the judge would ask during the preliminary examination, so it didn’t change reality too much. 

Two attorneys, both experienced lawyers who were recognized for their expertise in voir dire did the heavy lifting.  Each was given 15 minutes by the judge (a real Supreme, by the way, but one disinclined to abuse lawyers in general, and certainly not in front of students).

Afterward, they engaged in what Barry Scheck announced would be a “pedagogical exercise,” mostly because it would be undignified and too understandable to call it a teaching exercise and because he clearly liked using the word “pedagogical”.  Who doesn’t?

Each of the lawyers then listed on a piece of paper his three peremptory challenges and the three jurors he would most prefer to have on his jury, and why.  The students then wrote down which side they leaned toward after voir dire and why.  First the lawyers, then the students, told the room their thoughts.

Because  Anne Reed is never far from my thoughts, I stuck around for the demonstration to see others do voir dire and learn.  And learn I did.

The voir dire was artful.  Beautifully crafted and masterfully executed.  The student/jurors were relatively cooperative.  They were responsive and articulate.  While I’ve had judges who put more than the basic 12 in the box, including one who required us to voir dire 45 at a time, the scenario was sufficiently close to reality to simulate a real voir dire.  The only material difference was that the “jurors” were all law students, a homogeneity that would never happen.  On the other hand, my last few Manhattan juries were made up mostly of lawyers and investment bankers, so the breadth of opinion wasn’t that far off the mark.

Before getting to the fun part, allow me to cut to the end.  Barry telling the students how the demonstration showed the way one conducts voir dire, open ended questions, eliciting the potential jurors hidden biases, getting the sense of who favors or disfavors your side, and how one strives for an impartial, rather than a favorable, jury since the other guy is going to bump the ones you like, while you bump the ones he likes, and you end up with a jury in the middle.  Not quite an Anne Reed level of sophistication, but certainly the common wisdom.

The exercise in pedagogy was enlightening.  Everyone involved was half right and half wrong.  Everyone.  Decisions were made for speculative reasons or no reasons.  Assumptions were made that were dead wrong.  It was no better than flipping a coin.  Despite the picture perfect exercise, these experienced and competent lawyers picked jurors on a wing and a prayer.

The one theme that came out of it was that they might have had half a chance to get a clue what was happening in the students minds if they only had more time to question them individually, and follow up answers from one juror with questions to the others.  But in 15 minutes for 12 jurors, they learned nothing that made the process accurate.  Would a half hour have helped?  Doubtful.  Perhaps a 3 hours would have been enough time, but after 16 minutes the jurors were getting annoyed. 

When I think about the many and varied ideas that jury research has to offer, I keep trying to plug it into what happens in a courtroom in a normal criminal trial.  I have often said, and have always maintained, that all this effort to refine what we do in voir dire to gain insight where we have none is an exercise in futility.  It all sounds great, but it just never seems to work out the way we think it should. 

Thanks to this teaching pedagogical exercise, my confidence in voir dire is restored.  It’s still just voodoo. 

8 thoughts on “Ped’ Proof: Voir Dire is Voodoo

  1. SHG

    I regret to admit that I’m unworthy of that snap.  My original reply was close, but not nearly as effective.  Only after Bennett himself came up with the key word that made it snapworthy did I change my reply, adopt his word (without attribution) and nail him to the wall with my brilliant come-back.

    I’m so ashamed.  I’m unsnapworthy.

  2. Simple Justice

    What Jurors Are Really Thinking About

    The trial of Alaska Senator Ted Stevens was a mess from the outset, but aside from rampant prosecutorial misconduct issues, who would have thunk that his right to a trial by jury would have a horse racing story attached?

  3. Simple Justice

    What Jurors Are Really Thinking About

    The trial of Alaska Senator Ted Stevens was a mess from the outset, but aside from rampant prosecutorial misconduct issues, who would have thunk that his right to a trial by jury would have a horse racing story attached?

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