Ten Tips For Voir Dire
Generally. voir dire involves the preliminary examination of a juror by counsel. Frankly, voir dire is the mechanism through which attorneys select, or perhaps more appropriately reject, certain jurors to sit and hear a case. It is also a phrase used for a variety of procedures related to jury trials. Here are ten tips for effective voir dire.
- Adopt the proper orientation. Questioning during voir dire should be “conversational” rather than like an interview.
- Tell jurors why they are there. Explain the process to jurors requesting, if not cordially demanding, their honesty and candor, while helping them acknowledge their biases.
- Get jurors to talk. Getting to know a juror means getting them to talk as much as possible. Ask open-ended questions. Open-ended questions such as “Why?” and “What are your views on . . .?” provide more information than closed-ended questions (e.g., agree/disagree or yes/no questions).
- 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 since they inhibit honest and candid responses.
- Focus on difficulty vs. ability. Jurors are seemingly more willing to acknowledge their difficulties in doing something than in their ability to accomplish it. Questions that focus on jurors’ difficulties rather than their abilities gives them an opportunity to admit where they would have conflicts.
- Use an alternative route to uncover bias. Like most humans, 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.
- Design questions using “bad” answers. If there is any reason to believe that a juror has a certain negative opinion that he or she has failed to reveal, ask about it.
- 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.
- Keep jurors participating. It is important to encourage participation throughout the questioning process. 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.
- Be persistent. Do not let jurors avoid participation during voir dire. If some jurors are not participating, ask them directly for their views.
Finally, it is important to closely observe jurors’ nonverbal communication. Signs of anxiety and general positive or negative effects that indicate deviations in the potential juror’s behavior. Visual cues as body movement, body orientation, body posture, shrugs, eye contact, and facial expressions may provide insight. When a potential juror speaks, listen to word choice and for other auditory cues, such as voice pitch and tone, as well as any speaking hesitancy. Note those potential jurors with leadership and group dynamic skills, since they often become forepersons.
Certain personality types may possess greater potential to “hang” the jury. Jurors with jobs characterized by independence and self-reliance in decision-making are less likely to be influenced by other jurors. Individuals who tend to be socially isolated, opinionated, and interpersonally insensitive also tend to be independent.
An attorney-advocate must have an effective arsenal of weapons in her trial advocacy toolbox. Not all law schools emphasize trial advocacy skills like the California Desert Trial Academy. The CDTA was founded with the philosophy of not only teaching students the substantive law, but on training, educating, and developing students to be exceptional attorney-advocates. The development of trial advocacy tools is essential to success in any judicial or administrative setting. Call us today at (760) 342-0900 or find out more online here.