By Hon. Robert Trentacosta

Introduction

The following is a checklist to help you prepare and conduct an effective Voir Dire (Jury Selection). Voir Dire is your opportunity to hand-select the audience for your trial. If you plan, prepare and perform, you will maximize your client’s chance of success even before the evidence begins.

A lawyer should conduct Voir Dire in a relaxed, confident and conversational manner. This is your initial chance to establish your competence, likeability and trustworthiness to the jurors. Remember, the jurors’ perception of you can be as important as their perception of the evidence. Your credibility with the jurors, especially in Voir Dire, Opening Statement and Closing Argument, can be the difference between success and failure. As jury selection is foundational for your winning strategy at trial, you must never skimp on your planning or preparation. In your first few trials, be sure to review the list until the items become familiar and habitual.

1. Personal preparation

• Review your case theme and theory as you will be introducing these concepts during your questioning of the prospective jurors. For example, if your case involves a claim of self-defense, you will be asking the jurors questions about their experience in having to defend themselves or their families, and their attitudes/feelings about self-defense.
• Create an “ideal” juror profile. Know who you want to sit as a juror in your case. Prepare a chart listing the attitudes, values, beliefs, life experiences and feelings of your ideal, or at least, an “acceptable” juror. Jurors who match up with these factors will be your ideal or acceptable jurors. On the opposite side of the chart, list the antithesis of those factors. The jurors on the antithesis side of the chart will be the least desirable jurors for your case.
• Establish your system for recording information about each potential juror. The traditional manner of recording information uses Post-it style notes placed on the juror seating chart to correspond to the juror seating numbers. The advantage is that the notes are easy to move as jurors are excused and shuffled in the jury box. The disadvantage is that the size of the Post-it note allows only limited information to be recorded. You may opt instead to use a laptop with computer generated boxes corresponding to the court’s juror seating chart.
• Create a juror seating chart.The court will provide you with a juror seating chart that you may fill-in during voir dire. I suggest you get a copy of the chart from the clerk before trial and enlarge it. The larger squares will be easier to use as you record each juror’s information on your note card. You may also create a virtual jury box on your laptop using the court seating chart as a template.
• Familiarize yourself with the number of peremptory challenges available to you in the case at issue.CCP§231 details the number of peremptory challenges available in both criminal and civil case types.
• For sensitive areas of inquiry, consider having the Court pose those questions to the prospective jurors. If there are sensitive areas of inquiry, craft a list of questions for the court’s consideration. These are questions you would prefer the court ask the jurors instead of counsel. Depending on the nature of the case, these are important, but sensitive questions that may make the jurors feel uncomfortable. For example, in a child sex abuse case, the court could inquire whether any of the jurors have personal or familial experience with the issue. For sensitive or personal questions, the court will offer the prospective juror the option to answer the question outside the presence of the other jurors, but in the presence of the court and counsel.
• At the pre-trial conference, discuss the actual procedure the court prefers for jury selection. Make sure you know if you are to direct questions to the entire venire (all the jurors) or only a certain number of jurors (e.g. the first 25 names called).Verify the number of peremptory challenges available to each side. Make sure you understand how the court will fill the seats for jurors who are excused. Check with the judge as to the procedure the court would like followed when challenges for cause are being made. These challenges are always made outside the presence of the jurors. If a court reporter is used, the reporter should make a record of each challenge. Finally, verify how many alternate jurors the court intends to use and how many peremptory challenges the court will allow you for the alternate jurors.
• The court will conduct the initial Voir Dire of the prospective jurors. The court’s inquiry will cover basic background information of the jurors and an acknowledgment that they must follow the law. You should prepare a list of open-ended, non-judgmental questions that pertain to the facts of your case; and introduce your case theme and theory as a follow-up to the judge’s questions.