Chapter 1 The Voir Dire and Jury Selection Setting

LibraryMastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)
CHAPTER 1 The Voir Dire and Jury Selection Setting

Objectives

• To understand the goals of voir dire and jury selection.

• To understand the differences between jury selection procedures and their impact on the effectiveness of jury selection.

On February 15, 2006, in a federal courthouse in Alexandria, Virginia, jury selection began in the conspiracy trial of Zacarias Moussaoui. Moussaoui was the first defendant tried for a role in the tragic events surrounding the 9/11 airline hijackings and attacks. He was charged with conspiracy to commit acts of terrorism, aircraft piracy, destruction of aircraft, using weapons of mass destruction, murdering United States employees, and destruction of United States government property. The defendant eventually pleaded guilty to the charges, but a jury trial was held to determine whether he should receive life imprisonment without the possibility of parole or the death penalty. This case garnered international publicity and was one of the most publicized trials in recent history.

The court started the jury selection process by issuing 1,000 jury sum-mons.1 From these summons, approximately one-third of the jurors were eliminated from consideration because of summons delivery failure or hardship requests on the part of potential jurors. The remaining approximately 500-600 potential jurors reported to the courthouse on February 6, 2006, in four batches of approximately 125 jurors. While giving instructions to the jury during the first batch, the defendant interrupted the judge, making statements such as, "They are not my lawyer. I don't want them to represent me. I'm al Qaeda; they are American; they are my enemies. They have nothing to do with these people. This trial is a circus."2 In order to treat all potential jurors in the same manner, the judge secured a copy of the transcript for the first batch and read from it for each subsequent batch and, in an unusual turn of events, allowed the defendant to make a similar outburst at the beginning of each session before being led out of court.

The jury selection lasted approximately eight days with questioning being conducted solely by the trial judge, with the parties being allowed to submit follow-up questions to the court. After seventy jurors were qualified, jurors were asked to report on March 6, 2006, for the final jury selection. The resulting selection process yielded a jury of twelve jurors and six alternates. Despite the unusual nature of this case, the basic task of jury selection remained the same: to identify potential jurors who should be removed and seat a jury that was not biased against the client.

Goals of Jury Selection and Voir Dire

In theory, the goal of jury selection is to select an impartial jury. The attainment of this goal is placed in the hands of the adversary process. The parties attempt to prevent from sitting on the jury potential jurors who they suspect may harbor some bias or prejudice against their respective clients. In essence, jury selection is a filtering or "deselection" process resulting in a jury composed of individuals whom the parties and the court fail to remove. A potential juror can be prevented from sitting on the jury through the exercise of one of two types of challenges: challenges for cause and peremptory challenges.

Challenges for cause center on the failure of the potential juror to meet specific statutory qualifications, e.g., residence requirements or the presence of bias or prejudice. Bias or prejudice on the part of potential jurors can be inferred or actual. Inferred bias refers to the presumption of bias, usually defined by statute, as a result of a relationship between a potential juror and features of the case, e.g., a blood relationship between the potential juror and one of the parties or a financial interest in the outcome of the case. Actual bias is imputed to potential jurors as a result of statements reflecting prejudice or bias made during the questioning process or actual admissions of bias. In the Moussaoui trial, for example, those jurors who would not impose the death penalty under any circumstances or who would automatically impose the death penalty or who would not give the defendant, who was not a citizen of the United States, the same rights and considerations as U.S. citizens were removed for cause. As we shall see in Chapter 11, challenges for cause are limited in scope, unlimited in number, and within the discretion of the trial judge.

Lawyers can prevent potential jurors from sitting on the jury through a second method, the exercise of peremptory challenges. Peremptory challenges are those limited challenges whose number is set by statute and varies with the nature of the crime or litigation at issue. Lawyers generally have the freedom to exercise these challenges as they see fit; as we shall see in Chapter 11, however, the peremptory challenge must be exercised in a nondiscriminatory manner in terms of the juror's race, gender, or national origin, with some jurisdictions extending this prohibition to religious affiliation and/or sexual orientation.3

The four major goals of voir dire:

Information gathering: to elicit critical information from jurors in order to make meaningful use of peremptory challenges and challenges for cause.
Rapport: to establish a positive relationship between the lawyer and jurors that results in more effective voir dire and subsequent persuasion.
Education: to promote jurors' understanding and willingness to adhere to legal principles, juror roles, and the law.
Persuasion: to influence jurors to adopt perspectives on the case beneficial to the lawyer.

The foundation for the exercise of challenges for cause and peremptory challenges is the voir dire, the process of questioning jurors. Voir dire has four major goals: (1) information gathering, (2) rapport, (3) education, and (4) persuasion. We will examine these goals briefly here, returning to them again in Chapter 4.

Information Gathering

The most important goal of voir dire is to gather from potential jurors the information necessary (e.g., backgrounds, experiences, opinions, biases, and values) to enable lawyers to intelligently exercise their peremptory challenges and pursue any challenges for cause. Not only is information gathering the most important goal of voir dire, but it is also perhaps the only goal of voir dire uniformly recognized as appropriate by the courts. To achieve this goal, lawyers must carefully consider exactly what information is needed, skillfully ask questions that uncover the critical information, and employ techniques that promote juror candor and honesty. Unfortunately, the manner in which voir dire is conducted in many jurisdictions impedes effective information gathering.

Rapport

The second goal of voir dire is to build a positive relationship between the lawyer and jurors. Lawyers establish rapport by treating jurors with respect, showing an interest in the jurors as individuals, making the jurors feel comfortable, and sharing the personal side of themselves. Good rapport with jurors facilitates (1) openness and candor by potential jurors, (2) positive feelings toward the lawyer, which increases the persuasiveness of the lawyer, and (3) perceptions of lawyer objectivity, leading to greater trust, which is crucial to the effectiveness of the lawyer's arguments. These benefits lay the groundwork for more effective voir dire and subsequent persuasion at trial.

Education

The third goal of voir dire is education. Jurors arriving for jury service generally are unfamiliar with their new roles and duties and with what will occur at trial. They are also likely to be unfamiliar with legal terminology. Such phrases as "proximate cause" and "preponderance of the evidence" are not commonly used outside of courthouses. In addition, many jurors hold opinions contrary to legal principles or standards. For example, opinion polls have repeatedly shown that substantial minorities of the general population (and jury-qualified individuals) tend to presume defendants are guilty and believe that criminal defendants should prove their innocence,4 and that jurors would disregard the judge's instructions regarding inadmissible evidence.5

The need to educate potential jurors is underscored by the fact that failure to provide such education can lead to the jurors' inability to follow the instructions given to the them by the judge at the end of the trial.

Two basic considerations highlight the need...

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