Mark Bennett: Playing Voir Dire To Win

When Mark Bennett, the Texas Tornado, says he’s “made a study of the psychology and social dynamics of the process and taught the science and practice of it to countless lawyers across the country,” he doesn’t mean it in the Shaun King sense of clueless pretense. He’s not only got the experience to back it up, but he’s put together one of the most well-conceived, scientifically-grounded, experience-based classes for lawyers in jury selection I’ve had the honor of seeing. He can be annoying that way.

So when Bennett explains how to get on a jury, he knows what he’s talking about.

But why would you want to sit on a jury in the first place? Because in a criminal trial, if you can read and reason and resist being swayed by emotion, you will make a better juror than most of your fellow members of the community. A jury is the entity that acts as the voice of the community, and serving as a juror allows you to contribute to that voice.

For most people, the desire to sit on a jury falls farther toward the end of the spectrum than sticking needles in their eyes. But for those who choose to care about system, they realize that this is an unpleasant but critically necessary responsibility of citizenship. Without good jurors, the system is left to the misfits and terminally unemployed. If you’ve ever had the pleasure of sitting at the defense table without being paid, you will better appreciate the need for good jurors.

You may also believe that the law under which the defendant is being prosecuted is an illegitimate use of state power. In that case, acting as a juror gives you the opportunity to exercise the power of jury nullification—finding the defendant “not guilty” regardless of whether the state has proven the accusation beyond a reasonable doubt.

Unlike brother Bennett, I’m not as big a fan of the jury nullification perspective as others. I’ve seen many juries nullify the law, but not for the benefit of the defendant. It happens all the time, albeit without explicit recognition, when juries convict despite the failure of evidence to sustain the burden of proof.

Guilt beyond a reasonable doubt is a fine burden, but one that has defied definition forever. My experience is that juries will convict because they feel a defendant is guilty, even if there is reasonable doubt. This, too, is jury nullification, as they are instructed by the judge not to do so. They do so anyway. All the time. But I digress.

You are an intelligent, opinionated person who wants to share with your fellow citizens the fact that they have the power to follow their consciences in arriving at a verdict. This is admirable. But if you succumb to the temptation to do so during jury selection, your chances of being chosen drop to nil.

At the first opportunity, the “intelligent, opinionated person” wants to let everyone in the courtroom know just how intelligent and opinionated they are by vomiting their intelligent opinions all over the courtroom floor. They do it on Twitter, on Facebook, on Instagram, so why not. Isn’t everybody entitled to their opinion?

We call the process of turning a group of community members into a jury of six or 12 “jury selection,” but it is, by necessity, actually jury deselection. Each party can eliminate from the jury pool any person who has a bias for or against the defendant or a bias against any of the laws that are applicable to the case (this is a “challenge for cause”). Then each side can eliminate from the jury pool a fixed number of people for any reason at all, as long as that reason is not some form of proscribed discrimination (this is a “peremptory challenge”). The jury is the first dozen people (or half-dozen, in a misdemeanor case) remaining after both sides have exercised their challenges.

The layman’s grasp of voir dire, the process by which potential jurors are questioned, and a phrase invariably mispronounced by Texas lawyers, is usually grossly mistaken. People assume that lawyers are trying to pack the jury with the sort of people who they want, who will be amenable to their arguments and look favorably upon their side. If only we could.

It’s a process by which we do our best to rid the jury of people who are predisposed against our client, our cause, our position. If someone announces that they adore police because they protect us from rapists, and therefore they will be naturally inclined to believe a police officer more than, say, anyone else except the Pope, they might be struck for cause. “Might” is the operative word, since they can still be rehabilitated by a competent prosecutor and willing judge.

But if a person spews his views in voir dire to suggest that he might refuse to comply with the court’s instructions to convict if the prosecution proves that conduct in violation of law was committed, and that nasty guy at the defense table (no, the other nasty guy) was the one who did it, they must convict. The person who hedges, or worse, expounds openly that he believes as juror that his duty is not limited to being a cog in the system’s machine, but to be the conscience of the community and refuse to convict if he believes it to be unjust, is going to get struck.

Maybe struck for cause. Certainly struck by peremptory challenge. But shoot your wad during jury selection and you will never see the sweet luncheon menu during deliberations. Or read Mark Bennett’s advice on how to respond truthfully during voir dire and still not be deselected as a juror.

13 comments on “Mark Bennett: Playing Voir Dire To Win

  1. grberry

    And if you are on the needles in the eyes end of the spectrum, and reading this blog and its comments, mentioning that you read law blogs for fun in your questionnaire is likely to get you excused from the jury. At the least, it worked for me.

    Reply
    1. SHG Post author

      Another useful bit of jury duty info, though from a lawyer’s perspective, your good discovery comes at our expense.

      Reply
    2. LocoYokel

      You should really get to voir dire if you can, at least in Texas. Once you get that far you will not be called again for at least 2 years (IIRC), getting rejected at the questionnaire stage is not, to my understanding, a guarantee to not be called again in 6 months (or whenever next jury call is) as you didn’t actually go down to the courthouse to check in. Happened to me twice, although I never made it to voir dire. First time they pled out at the last minute and second time I believe all the jury pools got filled before they called me. I got checked in and exempted for 2 years both times.

      I actually really wanted to serve both times but it didn’t happen.

      Apparently this is not the correct way to respond to a summons though.

      null

      Reply
  2. Blast Hardcheese

    I got on a jury for a child-rape case.

    I’m a white guy in his mid-30s with 3 kids and rapidly graying hair, whose dress and demeanor scream “IT guy.” Other than the normal and generic questions (“Do you know this guy?” “Ever been raped?”), they didn’t ask much.

    They asked me if I thought cops were prone to lie, and I said something like “no more or less than anyone else.” And they asked if I thought people of the defendant’s ethnicity were more likely to commit crimes, to which I said “I don’t know?” and mumbled something about not having access to crime statistics. And despite that borderline-autistic response, I made it. And for one shining moment, I was The Foreman.

    Not sure if I was unconsciously following the dictates of Bennett, or if I just got picked because everyone disqualified themselves over the subject matter.

    Reply

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