- Feature
Voir Dire: When to Strike, When Not
by Cary Griffith
by Cary Griffith
Mr. Wright, the author of an upcoming Texas State Bar course entitled "VOIR DIRE: Preparation, Communication, and Presentation Selection, Theory, and Strategy," is familiar with the French pronunciation, but when in West Texas, he chooses a more colloquial pronunciation. But to the question of voir dire's relative importance, Mr. Wright is unequivocal. "I think it's crucial," he declares. "I believe voir dire is critical to a case," agrees Charles F. Brega, a partner in the Denver law office of Lindquist & Vennum. "And I can give you several examples of how and why it's important." One of Mr. Brega's most compelling examples involved a Wyoming case in which several cases were consolidated because they all involved the same issues. The evidence was heard by multiple juries at the same time. Then the juries separated to make their individual decisions regarding the same issues of liability for each respective party. "The defense won some and the plaintiffs won some," Brega notes. To him, that's pretty clear support for the notion that "the person listening to the evidence has a huge impact on the way a case is determined." But others, when considering the overall trial process, place voir dire in a less critical role. "We consider voir dire less important," comments David Shafer, Director of Research for Best Evidence, a company that in part specializes in jury consulting. Dr. Shafer places much more emphasis on conducting mock trials and focus groups. And he notes a couple of good reasons he believes those efforts are more important than jury selection. "What we try to do is help attorneys create intuitive stories that" jurors will understand, explains Dr. Shafer. To that end, Best Evidence conducts mock trials and focus groups to consider how certain parts of a case, or a case's themes, play to prospective jurors. Once they determine the impact of those themes, they can construct an intuitive story that not only assists the attorney in his or her trial conduct, but also in voir dire. But at the end of the day, adds Shafer, "you have very little control over what shows up" in your prospective pool of jurors. "And you only have a limited ability to deselect people. So for the most part, you have to play the hand that shows up." Both Wright and Brega don't disagree with Shafer's notion of juror unpredictability. But from their experience, it is precisely that absence of predictability that makes voir dire so important. Forming the Ideal Jury In every civil and criminal trial by jury, lawyers have a variety of ways to create an ideal jury. Most lawyers agree with Dr. Joe Rice, President of Jury Research Institute, a company that specializes in assisting attorneys with jury selection, mock trials, and similar trial techniques. Dr. Rice, who assisted the plaintiffs in the civil case against O.J. Simpson (re: the estate of Nicole Brown Simpson), believes "there are ways to use voir dire effectively to improve the likelihood of getting a jury who will listen." Dr. Rice believes voir dire is really all about juror de-selection. "All you can do is remove people you perceive are bad for your case," explains Rice. "You hope the good jurors remain. You can't protect them," but "you have to be crafty, because you want to expose the bad jurors, but not the good ones." The most obvious way to de-select jurors is through the use of preemptory challenges. Preemptory challenges involve striking jurors without having to state a reason. The preemptory challenge is a powerful tool, but for obvious reasons it's limited, and no one believes it's the lone, best way to create the ideal jury. After exhausting preemptory challenges, attorneys can only strike jurors for cause. Cause can involve a variety of reasons and is largely dependent on the nature of the case. For example, in a criminal case that involves the idea of presumption of innocence, jurors who don't believe in the notion could be disqualified. But here's where the process of jury de-selection becomes more art than science. If you ask a prospective pool of jurors if they believe in the idea of presumption of innocence, everyone would probably respond "yes." But according to Brega, there's a subtler way to get at their true perspective on the question. "Here's the way I ask that question," he explains. "When you came in and saw my client, how many of you said I wonder what he did?" When he asks for a show of hands, he has a good idea of which prospective jurors don't believe in the idea of presumption of innocence. However, the juror's response to that question is probably not sufficient to strike them for cause. So attorneys like Brega have to figure out how to either get them talking so they strike themselves by their own incriminating comments, or figure out how to begin changing their perspectives to ones more favorable to the case. In the Nicole Brown Simpson case, Joe Rice and the Jury Research Institute conducted focus groups to determine the strength of opinions of L.A. County residents about O.J. Simpson's guilt or innocence. One of the key points they were trying to figure out was "what kind of evidence and issue would it take to persuade someone that even though O.J. was acquitted" in the criminal trial, "he could still be found liable" in the civil trial. They were looking for jurors who did not express bias toward Simpson or at least whose bias could be addressed. In voir dire, they could then ask the kinds of questions to determine who among the jurors favored Simpson. After their limited preemptory challenges were exhausted, the trick was to get the remaining prejudicial jurors removed for cause. In order to remove them for cause, the estate's team had to give the jurors "the right questions to commit themselves to an opinion so we could get them removed," explains Rice. "By using open-ended questions, we could get a juror taking about the case." If the juror recalled all the defense themes, but none of the prosecution's evidence, they'd make every effort to strike them for cause. Brega is quick to point out that, regardless of your ability to get jurors removed or included, the jury-selection phase can also be used to begin making jurors aware of relevant case themes. For example, Brega once represented a doctor who, because of an accident, had his income reduced from $400,000 to $200,000 dollars a year. Brega knew the doctor's large salary was going to be an issue, so during voir dire he asked his prospective jurors, "raise your hand if you think doctors make too much." Then Brega followed with: "what if he was a plumber and instead of $80,000 per year, an accident reduced his income to $40,000 per year?" Now Brega has the jury recognizing the size of the salary as an issue and can begin working on the fact that the law would treat the plumber and the doctor the same—so the issue of dollar amount shouldn't even be considered. That way, Brega uses the voir dire to begin addressing potential issues in his case. In every trial, every lawyer wants to stack his or her jury with those most favorable to the case. Because opposing counsel are always vying for the same thing, no one ever achieves the perfect jury. But a key way to get as close to perfect as possible is through the artful exercise of voir dire. |
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