By Hon. Robert Trentacosta
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.
2. Conducting an effective voir dire
- On the day of trial, while waiting for the jurors, make sure your counsel table is neat and organized. This is a simple way to demonstrate your competence to the jurors. If your table is a disorganized mess, you are immediately sending out a negative signal to the prospective jurors. From the moment the jurors enter the courtroom, they are observing your behavior. Act accordingly.
- Prior to the jury entering the courtroom, the courtroom clerk or judge will provide you with an alphabetical listing and/or a random listing of the jurors’ names. Record the jurors’ names on your juror note cards. Make sure you record the names correctly. If there are any names that seem difficult to pronounce, pay special attention to the correct pronunciation when the individual is called by the clerk or questioned by the court.
- As the clerk calls the jurors’ names, make sure you arrange your note cards in the correct order on your juror chart.
- Listen carefully to the court’s questioning of the jurors and record the information on your juror cards. Pay close attention to the jurors while the judge is questioning them. Be watchful. Observe the jurors and note their attitude and demeanor, especially how they react to the other jurors’ answers. This non-verbal communication can give you valuable information when it is your time to speak with them. During the court’s questioning, flag any issues that need follow-up during your Voir Dire of the jurors.
- When it is your turn to address the jurors, exude confidence and competence. Ask open-ended questions to get the jurors talking and listen to their answers in rapt attention. Lose the lawyer jargon and use simple, unpretentious language.
- Do not be judgmental or scornful if the juror gives you an answer you do not like. Remember, your job is to gather information to determine who on the panel are your ideal or acceptable jurors. A juror’s hostile or negative answer may provide you with a basis for a cause challenge or an intelligent exercise of a peremptory challenge.
- In order to save time, ask questions to the panel as a whole. Ask jurors who have an affirmative response to your question to raise their hand and then follow-up with these individuals as to the specifics of their experience or feelings.
- Cause challenges (e.g. the juror will not follow the law; they have experiences, values or attitudes that preclude them from being fair to both sides; or they do not have the capacity to sit as a juror) are heard outside the presence of the prospective jurors. At the conclusion of your initial questioning of the panel, the court will inquire whether you “pass for cause”. If you intend to make a cause challenge, (1) ask to approach sidebar; (2) inform the court that you will be challenging a specific juror for cause; and (3) inform the court of the reason(s) for your challenge. The court will rule on the issue. If the court grants the request, the juror will be excusedby the court (i.e. you will not be charged with a peremptory challenge) and a new juror will take the excused juror’s seat. If the request is not granted, you must consider this particular juror for a peremptory challenge.
- When exercising a peremptory challenge, the standard language is: “We ask the court to thank and excuse juror # (fill in the seat number).”
- Keep careful track of the number of peremptory challenges you have, use them wisely, and always balance between the jurors you are considering excusing, and the jurors who will take their place in the jury box.
- Remember, peremptory challenges should only be exercised as to the first twelve jurors seated in the jury box.
- Wheeler/Batson Motions: The parties may not use peremptory challenges to exclude jurors based on the prospective juror’s race, ethnicity, gender, gender identify, sexual orientation, national origin or religious affiliation. CCP §231.7 details the procedures the court will follow should such a challenge be made. The discussions regarding a Wheeler/Batson motion, including any justifications for the exercise of the peremptory challenges to members of a cognizable group, occur outside the presence of the jurors.
- The procedure for selecting alternate jurors is the same as above. The alternate jurors will listen to the evidence and will replace any of the original twelve who are excused during trial. If the alternate replaces a juror while deliberations are being conducted, the panel will be instructed by the judge to begin deliberations anew.
Voir Dire is your opportunity to handpick your audience; display competence and confidence to the panel; and introduce your case theme and theory to the jurors even before Opening Statement. An effective Voir Dire creates positive momentum for your case.
Know the attributes of the jurors you want for your trial and select ideal or acceptable jurors. Use your peremptory challenges to excuse jurors who will not be receptive to your case. Carefully track your peremptory challenges to maximize their effect by excusing the least desirable jurors.