The purpose of this article is to discuss the modern jury selection methodology and philosophy used by trial lawyers and recommended by jury psychologists throughout the country. The days of asking the prospective jury panel several limited, leading questions about their ability to follow the law and to be fair and unbiased are gone. The current jury selection process requires an open-ended, free discussion with the potential jury members about their feelings, life experiences, and opinions regarding the major issues in the case.
Jury psychologists have confirmed that the jurors come into the courtroom with preconceived opinions affecting the way they will view the case. These opinions have been formed as a result of their life experiences. Attitudes that stem from life experiences will probably not change despite excellent legal arguments. Accordingly, your primary goal in jury selection should be to properly screen the panel to determine which potential jurors are prejudiced against your case and your client. This will allow you to eliminate the problem jurors. Your second goal should be to educate the potential jury on the issues in the case. This will allow you to determine if a juror is well suited to decide the case before him or her. It is obvious that some jurors, because of their personal experiences, are better suited to sit on certain juries than others. For example, if one juror is a businessman who has been repeatedly sued for breach of contract, he may not be the best juror in a commercial breach of contract case. Similarly, if a potential juror has been the victim of numerous crimes, she may not be well suited to judge a case involving conversion. Explain the weaknesses in your case to the jury. This will prove to the jury that you are being completely honest with them. This also takes away the “shock” value of the problems with your case when your opposition raises it. Your third jury selection goal should be to establish rapport with the jury. This will be the only time where the jury will be able to interact and speak with you. Use a conversational tone when addressing the jury. Make sure that your body language is sending the right message. Try to keep your hands out of your pockets. Prevent crossing your arms or rolling your eyes at any potential juror’s response. This type of body language may be interpreted by the jury members as an attack upon them.
In order to maximize the chances of achieving an open, honest discussion with the prospective jury, ask open-ended questions. The old voir dire questions that simply require the jury to follow along nodding their heads and saying “yes, we will be fair,” “no, we will not discriminate,” “yes, we will follow the law,” should be thrown away. Instead, approach jury selection as an open forum for discussion about the issues that will be presented in the case. Use the selection process to probe the jury’s feelings regarding those issues. Make sure to ask the jury how they feel about the matters raised. Find out what their personal feelings are. Remind the jurors that there are no right or wrong answers in voir dire. Explain that you are seeking candid and complete responses. Encourage the jury to speak openly about their feelings and sincerely thank them when they are honest with you, even when you do not agree with them. Do not be afraid that a potential juror will contaminate the rest of the panel by answering your questions in such a negative way that it will pollute the entire panel. You want to hear how the juror really feels about the things that will be addressed in the trial before that juror is actually empaneled. Make sure to allow the jurors to do the talking. This will be your only opportunity to hear what the jury has to say. You will be doing the talking the rest of the trial. Learn to become a very good listener when it comes to voir dire. Once a juror candidly states his or her position on a matter, ask the rest of the panel, “How many of you agree with that juror?” Have the jurors that agree raise their hands, and then have them each explain what they believe. By going through this process, you will identify all jurors that have strong feelings about the important aspects of your case. You will then be able to ask the necessary questions to have the biased, prejudiced, or inappropriate potential jurors eliminated for cause without having to use one of your precious peremptory strikes. To put yourself in the proper state of mind for this type of open forum jury selection, visualize yourself as a talk-show host discussing important matters that will be coming up in the show with the audience before the show begins. The discussion should invite the audience to comment about the topics that will be considered on the show. Go from audience member to audience member reinforcing the issues and seeking their opinions and beliefs. Determine which audience members raise their hands, talk the most, and seem most informed. Take note of who looks mad, who looks at peace. Evaluate all of this information before exercising your peremptory strikes on the audience.
You will probably be somewhat nervous in the beginning of your voir dire. This is normal. If you are feeling exceptionally nervous, admit it, and explain that you are feeling nervous because the case is very important to your client. By being honest with the jury, you will give them an opportunity to reciprocate and be honest with you. Consider using an outline that has all the key points you wish to discuss with the jury. This will prevent you from reading to them. Try not to deliver your entire voir dire presentation from behind the podium. Instead, use the podium only when you need to review your outline. The rest of the time, you should have nothing that is physically between you and the jury. Maintain a safe distance from the jury so that they do not feel that you are encroaching upon their space. Many experienced trial attorneys and judges recommend that attorneys memorize the jurors’ last names before they address them. This is certainly very impressive. Nevertheless, if you feel you are too nervous, or you are unable to memorize all potential jurors’ last names before questioning them, create a chart where you place each juror’s name in the box that corresponds to the seat he or she has in the jury panel. This will allow you to look down occasionally at your jury chart and determine the correct name for each juror. Trust your gut feeling. Many times, you will look at a juror and, for whatever reason, feel that you are not comfortable with that potential juror. Chances are good that the juror is not feeling comfortable with you, either. In that case, strongly consider using one of your peremptory strikes to eliminate that potential juror from being a decisionmaker in your case. Jury selection is very challenging. During voir dire, you must ask proper questions, be a good listener, take note of relevant answers, keep track of what every juror said, evaluate the jurors’ body language, notice how the jurors interact with each other, consider how the jurors act towards your client, and then evaluate who may be the most dangerous to keep on the panel. Once that is complete, you must then prepare challenges for cause, decide who you will strike using your peremptory challenges, and preserve the record for appeal. Needless to say, jury selection requires proper preparation and thorough execution. Take whatever time is necessary to prepare physically and mentally to conduct a proper voir dire examination using the modern method of questioning. This will greatly increase the likelihood of your deselecting the right jury.
Always have someone assisting you in the jury selection process. Consider using an associate, paralegal, secretary, or friend to sit in the audience taking notes about how the jury reacts to you, your client, and the questions that you are asking. It may be difficult for you to evaluate the entire panel when you are questioning a particular juror. By having another person assisting you in observing the jury, you will be able to monitor the entire panel’s response and reaction to your questions. Make sure to confer with your co-counsel or assistant before you move to strike a potential juror for cause or before you use your peremptory strikes. Speak with your client about his or her feelings regarding the jury. Many times a client will have strong feelings for or against individuals that you should take into consideration before making your final decision to exclude certain individuals from the jury.
Use the modern method of jury selection to improve your success rate at trial. Make sure to prepare for jury selection as thoroughly as you would for an opening statement or closing argument. By taking the voir dire selection process seriously, you will greatly enhance your performance in jury selection.