Harper Lee wrote in To Kill a Mockingbird, The only place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box.
Voir dire is the selection process where potential jurors are asked questions to determine whether they can be fair in a particular trial. The goal is to find their resentments before they get into the jury box. Depending on the court, it can be conducted entirely by the attorneys, entirely by the judge, or by a combination of both.
When courts permit attorneys to ask questions, the scope of what the attorneys can say varies widely. For example, some courts allow attorneys to explain their case in great detail without the necessity of posing a lot of questions to the jurors. Such a scenario offers a unique chance for an attorney to build an emotional bond with the jurors and can be one of the most important parts of a trial.
In most courts, however—even where lawyers are allowed a chance to participate—the court will not permit the attorneys to do anything other than ask questions (the amount of particular facts an attorney can discuss with the jury varies among courts). In addition, there is often a court-imposed time limit that restricts questioning. Moreover, when judges conduct the entire voir dire, the process can be even more perfunctory.
The custom in federal courts is that judges conduct the majority of the questioning with some involvement from the attorneys. The judges are strict in prohibiting statements or arguments from counsel and requiring that only questions be asked. There are also time limits set by the individual judge.
The hardest part of voir dire is getting the jurors to talk. It is very difficult because the setting is formal, and you are necessarily asking jurors questions about their own biases. Not many people are willing to talk openly about their prejudices and shortcomings in front of a group of strangers. Plus, everyone likes to think of himself as fair. So, getting jurors to talk about their failings and then to admit that they cannot judge the case fairly because of their biases is a rare event.
In addition, the limited amount of time allowed prevents a thorough voir dire. There is simply not enough time to get adequate information from each juror to make very intelligent decisions. If a lawyer has only twenty minutes to question thirty to forty jurors, that leaves about thirty to forty-five seconds per juror—hardly enough time to get a juror comfortable with revealing long-held biases.
Some lawyers think they can watch jurors’ body language during voir dire to gain insight into what type of juror they will be. However, trying to evaluate jurors by dress, mannerisms, and body language is pure speculation. It is naive to think that a lawyer can predict how complete strangers will decide a complex matter by evaluating their body language and mannerisms.
Given the difficulties in getting information from jurors, you must have realistic goals. There are four things you can accomplish in most voir dires: (1) identify the obviously biased jurors who speak out against your position, (2) get the jurors to like you, (3) make the jurors interested in your position, and (4) educate the jury by discussing the critical legal issues that will apply to your case.
First, voir dire is your chance to weed out the obviously biased jurors who can’t wait to tell you their opinions about your case. For example, some people believe that if a defendant is innocent, he ought to testify at trial even if the Constitution gives him the right not to. If you are a defense attorney and you plan to instruct your client not to testify and discover such a juror, you have achieved success.
Second, voir dire is a wonderful opportunity to let the jury get to know you. First impressions are everything. You may be taking written notes on the jurors, but they are making mental notes about you. Are you likable? Do you know the case?
Third, try to create an emotional bond between the jurors and the facts of your case. Make the jurors feel the trial is important for your client so they will want to be on the jury to return a verdict in your favor.
Fourth, since you cannot discuss the details of the law in your opening statement, voir dire affords an excellent opportunity to do so. For example, criminal defense attorneys will often spend significant time emphasizing how high the burden of proof is in a criminal case. Defense attorneys can also explain elements of the crime in a way that shows how difficult it should be for the prosecution to get a conviction.