Investigating Prospective Jurors

Challenge for Cause

In California, counsel is permitted to examine each prospective juror to determine whether he has the qualifications to serve as a juror and whether there is cause to challenge him on the ground that he probably would not be impartial. This questioning of prospective jurors is akin to a cross-examination in that it seeks to ascertain whether a prospective juror is competent or is biased against either party or whether he has ever been involved in a situation comparable to the one at issue in the trial, has an aversion to the subject matter of the litigation, etc.

Counsel Must Decide

Whether the examination should go far beyond investigation of interest and bias is a question that divides lawyers into two schools of thought. Each attorney must decide for himself which theory he should follow.
Advantages of Long Examination on Law and Fact

The lawyers who advocate a long and searching examination of every prospective juror feel it accomplishes the following goals: ( 1) It allows the attorney and the juror to become acquainted; (2) the questions advise the juror of the attorney's claims and contentions; (3) the attention the lawyer gives to the juror in a long and exhaustive examination flatters the juror and induces him to look favorably on the lawyers case; and (4) the examination educates the juror on the law favorable to the examiners case.

Many of these advantages relate to the attorney's standing in the community where the case is being tried. If he is well known professionally, the citizens know him by name, and he has gained a reputation as a successful and ethical lawyer, a lengthy voir dire examination probably will not hurt his case or standing, and the jurors may pay some heed to his attempts to educate them on the issues and the law. If he is not prominent in the community, the advantages of pro longed examination may not accrue to him.

Disadvantages of Lengthy Voir Dire

Other lawyers feel strongly that a lengthy examination of each prospective juror does more harm than good, because it is a waste of time and does not leave a lasting impression on the juror. They feel it is doubtful that a lengthy examination will allow the lawyer and the juror to become acquainted. The two have never met before and they most likely will never meet again. Their relationship is comparable to that between a performer on a stage and a person in the audience, a relationship not conducive to acquaintanceship.

Nor do these lawyers agree that an extensive examination will ingratiate the lawyer with the juror. This presupposes that the lawyer is equivalent to a matinee idol whose mere utterances and appearance will cause women to swoon and men to desire his friendship. Nothing could be further from reality. Many a lawyer is not impressive in appearance and has a voice not pleasant to the ear. A long and tiresome examination might in fact cause a juror to dislike both the attorney and his client.

Voir dire of the jury is not the time for premature presentation of evidence, nor for the even more frequent attempts at pre-instruction. Neither instruction nor the giving of evidence is the function of counsel. The immediate ad vantage of such diversions is questionable, since opposing counsel usually can equal or exceed the initial distractions from the true purpose of jury trial. The larger interest of the trial bar as a whole, and of equally earnest litigants who await a forum for their own trials, is frustrated by such dissipation of court time. We cannot expect the Legislature to provide, or the people to pay for, additional courts to provide the leisure for overlong voir dire exercises. A full court day was required to choose a jury here. Unfortunately, the expenditure of so much time is not uncommon, although an hour frequently should suffice. The purpose of the voir dire is but to insure choice of 12 jurors who are fair and who have no preconceived notions of the facts or the parties. Each trial judge has a broad power, on his own motion, to curb such examination. It is to be hoped that judges can develop a uniform approach to keep voir dire within reasonable limits, to the ultimate benefit of lawyers, litigants, and jurors alike.

How to Select Jurors

Every phase of a trial requires adequate preparation and the voir dire examination of jurors is no exception. Even for a short voir dire, counsel must know before hand just what questions to ask, and if he decides to examine at length he cannot do so off the cuff.

List of Questions

The normal pretrial preparation on the issues, the pertinent law, and the testimony to be expected from both favorable and hostile witnesses must precede preparation for voir dire questioning of the jury panel. Counsel then should prepare a list of questions covering all the matters he needs to investigate in order to select 12 impartial and open-minded jurors. This list should act as a guide in the actual questioning. It is a handy memorandum of each vital matter to be discussed. Thus it in fact also serves to give the jurors some idea of the lawyers’ contentions and points of law; but these matters will probably be forgotten by the time the case is submitted for decision.

The questions do not have to be asked exactly as written. The list merely suggests phrasing. However, on one matter counsel should be careful of his wording. When the question contains a point of law it should not be phrased as if the lawyer were the absolute authority. Many judges will not allow questions that state what the lawyer considers to be the law; it is the function of the court, not the lawyer, to instruct the jurors on rules of law. Counsel may be able to ask a question dealing with the law if he phrases it care fully. For example, rather than beginning, "The court will instruct you... He should ask, "If the court instructs you (giving instruction), would you have any personal reason or scruple that would prevent you from following this instruction?"

Selection of Questions

Just because the attorney has a long list of questions does not mean that he must ask each juror every question, or even ask the first juror called every question. A long-winded examination of each prospective juror becomes tedious and boring to everyone in the court room. The jurors are a captive audience; they cannot get up, walk around, leave the courtroom, or even interrupt and ask questions. If jurors who have already been accepted have to sit in the jury box hour after hour listening to the same questions being asked over and over again, they most likely will pay no attention after two or three jurors have been examined.

Counsel can do two things to avoid this: (1) Rather than asking each juror the same questions, he can select from his list, leaving something new to be asked each successive juror-this will hold the attention of jurors who otherwise would be bored and wool-gathering; and (2) before examining each juror individually, he can ask some questions of the jurors collectively, reserving only the more important and personal questions to be asked individually.

Evaluating Jurors

Some prospective jurors want to serve and others do not. Those desiring to serve will give the answers that they believe the attorney wants to hear and that they hope will make him accept them as jurors. Those who do not wish to serve will give answers they hope will cause the lawyer to challenge them. Counsel must try to determine the prospective juror's attitude toward serving and evaluate his answers accordingly.

Sometimes counsel is confronted with a juror who wants to serve, but still is impelled to be honest in divulging that he probably would not make a fair and impartial juror. For example, in a jury trial taking place in a small town, one side of the case was represented by a local lawyer and the other by a well-known lawyer from a large city.

Fudging Appearances

Unless the lawyer knows something about prospective jurors, selection of a jury is really a matter of guesswork. Counsel should try not to rely on appearances. The little, twittering, soft-spoken, motherly old lady might easily vote for the death penalty in a homicide case. The burly, shady-looking man whom counsel thinks he would not want to meet in a dark alley may be a kindly husband, father, and grandfather.