As any reader of Simple Justice knows, I am a huge fan of Anne Reeds Deliberations. While not quite a student of voir dire, no trial lawyer can ignore this critical phase of a trial. Indeed, cruising the practical lawgosphere, one sees many posts about voir dire, what to look for, how to get there and what it all means.
But I have a secret question. How has it all worked out for you? Despite my best efforts at getting potential jurors to open up, to tell me what they think and to give me a chance to see what they really think about things, I still don’t believe that I have usually managed to achieve very much in voir dire. At the end of the day, I don’t really know my sitting jurors well enough to say that I have selected a fair panel.
Over the years, I’ve tried the different routes. I’ve done questionnaires where allowed. I’ve used a jury consultant, which was one of the most expensive mistakes I’ve ever made. I’ve asked open-ended questions, and closed. I’ve been as charming as I can muster to engage the panelists and try to make them want to talk to me. After all of this, I’ve learned little.
Judges rarely seem to take voir dire seriously, or want to let me take it seriously. They are almost always satisfied when they can get a juror to mouth the words that he or she “can be fair.” “Well, there you go,” they tell me. “The guy says he can be fair, what more do you want?”
We spend most of our time on the more vocal panelists. At least we get some reaction and it saves us from standing up there doing all the talking, while the jury panel looks at us without muttering a word. They gaze without blinking, without speaking, and wait out there time. Some smile at us, as if they know better than to give us the wink but want us to know something. What is the message? Are they for us, or are they trying to sucker us in so that they can slam dunk the defense? I’m never quite sure.
Defendants often get gut feelings about jurors, but if you question them as to why, it usually turns out to be some simplistic analysis based on objective information. If the panelist has a friend who’s a cop, they want the guy off. When you tell them that people who are close to cops almost always know that cops lie on the stand all the time (and brag about it to their friends), the defendant suddenly changes his mind and loves the juror. But then you tell them that there’s no guarantee that this is what’s going on in the juror’s mind, and they want him off again.
The jury consultant route is very tempting to a defendant. They love the idea that there’s someone out there who has a magic way to read the minds of jurors and tell him exactly who to pick and who to bump. It’s not cheap to get a person to sit at the defense table with a bunch of letters after their name, but if they can topload the jury with friendlies, it’s worth it. In fact, defendant’s often think the jury consultant fee is a better bet than the legal fee, since criminal defense lawyers offer no guarantees and certainly no magic bullets. But when the trial is over and things didn’t work out exactly as expected, the jury consultant points at the lawyer and says, “Hey, I can only do so much.”
Having spent a lot of time with psychs of either persuasion, I’m less than impressed with their insight. They can be wackier than anyone else in the room, and bizarrely secure in their belief that they understand other people based on a few words and a couple of “deep” questions. It seems closer to voodoo than science, and it disturbs me that they suggest that they have an ability that belongs only Madame Zuwonga, the Mind Reader.
From my seat at the table, I believe that the best I am able to accomplish is to get the worst of the worst off the panel. We root out the more overtly biased, usually because they tell us who they are. But the quiet ones fall under the radar. It seems like everyone has experience with police these days, and everyone knows someone who has been a criminal defendant or is sitting in a prison cell.
Is the upper east side banker a limousine liberal or a Bush conservative? Will one more question get me the answer, or annoy the entire panel and make them think I’m an arrogant jerk, treating them like pathetic children? And when will the judge get bored and jump in to try and embarrass me so that I’ll sit down and let her move the case to trial?
And so I read as much as I can about voir dire, hoping to learn something that will make me more capable of selecting jurors who will be truly open to the idea that my client may not be guilty, that the police officer on the stand may not be telling the exact truth and that a not guilty verdict will not bring about the ruin of society. I believe we keep reading and learning about voir dire because we want desperately to be more effective, but secretly fear that for all our efforts, we really accomplish very little. Is this just me?
But I have a secret question. How has it all worked out for you? Despite my best efforts at getting potential jurors to open up, to tell me what they think and to give me a chance to see what they really think about things, I still don’t believe that I have usually managed to achieve very much in voir dire. At the end of the day, I don’t really know my sitting jurors well enough to say that I have selected a fair panel.
Over the years, I’ve tried the different routes. I’ve done questionnaires where allowed. I’ve used a jury consultant, which was one of the most expensive mistakes I’ve ever made. I’ve asked open-ended questions, and closed. I’ve been as charming as I can muster to engage the panelists and try to make them want to talk to me. After all of this, I’ve learned little.
Judges rarely seem to take voir dire seriously, or want to let me take it seriously. They are almost always satisfied when they can get a juror to mouth the words that he or she “can be fair.” “Well, there you go,” they tell me. “The guy says he can be fair, what more do you want?”
We spend most of our time on the more vocal panelists. At least we get some reaction and it saves us from standing up there doing all the talking, while the jury panel looks at us without muttering a word. They gaze without blinking, without speaking, and wait out there time. Some smile at us, as if they know better than to give us the wink but want us to know something. What is the message? Are they for us, or are they trying to sucker us in so that they can slam dunk the defense? I’m never quite sure.
Defendants often get gut feelings about jurors, but if you question them as to why, it usually turns out to be some simplistic analysis based on objective information. If the panelist has a friend who’s a cop, they want the guy off. When you tell them that people who are close to cops almost always know that cops lie on the stand all the time (and brag about it to their friends), the defendant suddenly changes his mind and loves the juror. But then you tell them that there’s no guarantee that this is what’s going on in the juror’s mind, and they want him off again.
The jury consultant route is very tempting to a defendant. They love the idea that there’s someone out there who has a magic way to read the minds of jurors and tell him exactly who to pick and who to bump. It’s not cheap to get a person to sit at the defense table with a bunch of letters after their name, but if they can topload the jury with friendlies, it’s worth it. In fact, defendant’s often think the jury consultant fee is a better bet than the legal fee, since criminal defense lawyers offer no guarantees and certainly no magic bullets. But when the trial is over and things didn’t work out exactly as expected, the jury consultant points at the lawyer and says, “Hey, I can only do so much.”
Having spent a lot of time with psychs of either persuasion, I’m less than impressed with their insight. They can be wackier than anyone else in the room, and bizarrely secure in their belief that they understand other people based on a few words and a couple of “deep” questions. It seems closer to voodoo than science, and it disturbs me that they suggest that they have an ability that belongs only Madame Zuwonga, the Mind Reader.
From my seat at the table, I believe that the best I am able to accomplish is to get the worst of the worst off the panel. We root out the more overtly biased, usually because they tell us who they are. But the quiet ones fall under the radar. It seems like everyone has experience with police these days, and everyone knows someone who has been a criminal defendant or is sitting in a prison cell.
Is the upper east side banker a limousine liberal or a Bush conservative? Will one more question get me the answer, or annoy the entire panel and make them think I’m an arrogant jerk, treating them like pathetic children? And when will the judge get bored and jump in to try and embarrass me so that I’ll sit down and let her move the case to trial?
And so I read as much as I can about voir dire, hoping to learn something that will make me more capable of selecting jurors who will be truly open to the idea that my client may not be guilty, that the police officer on the stand may not be telling the exact truth and that a not guilty verdict will not bring about the ruin of society. I believe we keep reading and learning about voir dire because we want desperately to be more effective, but secretly fear that for all our efforts, we really accomplish very little. Is this just me?
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Nope, not just you. It’s not a science, it’s witchcraft; and as far as I can tell, the “back of the neck” hunches and superstitious rules (I won’t accept a schoolteacher, for instance) are as good a way to go as any.
I’ve been involved in a lot of jury selections but none more gratifying than one last week in California state court. The judge in that case had the good judgment to allow the parties to give three-minute long statements to the jury in advance of the voir dire. Context was everything. Never have I seen jurors open up so much with their opinions since they had the ability to couch those opinions within a smattering of case knowledge. The voir dire felt more like an energetic focus group discussion. No voodoo, no magic mindreading, just well-thought out open-ended questions that gave jurors the ability to speak their minds. The combination of: 1)case context and 2) key attitudinal questions made all the difference in getting jurors to open up. We knew a LOT about them by the time peremptories rolled around.
That’s a fantastic idea. I practice in California state court and one of the most ridiculous things about jury selection is when both sides want to broach a topic specific to the trial with the jury, but “can’t talk about the facts in this case.”
Also, my feeling with respect to jury consulatants is that their value is not the time spent sitting at counsel table attempting to divine the panel’s inner most thoughts, but the time spent before the case analyzing the “kind” of jurors you want and creating profiles that you can look for. That part, with a good jury consultant, is valuable because, frankly, most lawyers are thinking more about “their” case than how the case is going to impact on 12 strangers and who they might want those strangers to be.
As any criminal trial lawyer will regale you with countless stories of, so many times jurors hone in on some fact or issue that neither side considered at all important. I don’t know about God, but juries work in mysterious ways.