Chapter 4 Preparing for Voir Dire

LibraryMastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)
CHAPTER 4 Preparing for Voir Dire

Objectives

• To understand how to use case analysis in preparing for voir dire.
• To develop voir dire questions that achieve the four major goals of voir dire.

A key to successful voir dire and jury selection is preparation. This means taking the time necessary to develop questions and strategies that will make maximal use of what is available on voir dire. Ideally, the development of voir dire is an evolutionary process. It starts in discovery, where notes about witnesses are taken and the eventual framework of the case develops, and culminates when lawyers finalize their voir dire questions in the days immediately preceding trial.1 There are two basic steps in the preparation of the voir dire for trial: case analysis and question development.

Case Analysis

The first step in preparing for voir dire is to conduct an in-depth analysis of the case. This analysis considers the following:

The theme of the case
The strengths and weaknesses of the case
The nature and extent of pretrial publicity
Important opinions and attitudes of jurors
Important experiences and reference groups of jurors
Potential grounds for challenges for cause
A statement of contentions or "mini-opening"
Opposing counsel's important voir dire topics and questions

Basic elements of case analysis:

Identify the best theme.
Determine the strengths and weaknesses of the case.
Analyze the nature and extent of pretrial publicity.
Identify important opinions and beliefs of jurors.
Examine likely important experiences and reference groups of jurors.
Determine potential grounds for cause.
Develop a statement of contentions/mini-opening.
Anticipate your opponent's important voir dire topics and questions.

Through case analysis (and becoming familiar with local voir dire procedures), a clearer picture emerges of how to achieve the goals of voir dire and which jurors to prevent from sitting on the jury (either through a challenge for cause or a peremptory challenge).

The Theme of the Case

Crucial for success at trial is identifying a persuasive theme of the case. A theme provides jurors with a framework for processing the evidence, arguments, and judicial instructions they will receive. Developing questions that reveal the potential jurors' receptivity to the party's theme is important. If jurors reject the theme, the task of persuasion becomes difficult indeed. For example, if the plaintiff's theme of the case is that severely injured persons should be given sufficient compensation to enable them to stay at home rather than being placed in an institution, potential jurors who reject this theme are undesirable for the plaintiff. By the same token, jurors who reject the defense theme that appropriate and cost-effective care is best provided at an assisted care facility would be undesirable for the defense. Uncovering jurors' views on the case theme enables the lawyer to shape a more receptive jury by removing those jurors who react most negatively to the theme.

The Strengths and Weaknesses of the Case

A second consideration in the case analysis centers on an examination of the strengths and weaknesses of the case. A number of elements combine to reveal the strengths and weaknesses of the case. These elements include evidence and arguments, the credibility and persuasiveness of witnesses, the characteristics and credibility of the parties, the nature of the law and judicial instructions, and the lawyers' personalities. A listing of the strengths and weaknesses results from addressing the case as a whole, anticipating the opponent's evidence and arguments along with one's own.

A good voir dire emphasizes the strengths and eventually defuses the weaknesses of the client's case. Determining how jurors react to these strengths and weaknesses is crucial.

Assessing jurors' reactions to the weaknesses in the case is the most important of the two considerations. This involves a two-stage process. First, jurors' reactions to potential weaknesses must be uncovered. Second, these weaknesses must be defused, thereby further advancing the client's cause. If a weakness in the client's case will negatively influence a potential juror, use of a peremptory challenge or, if possible, a challenge for cause may be in order. For example, if a weakness in the defendant's case stems from the presence of an adverse eyewitness, the defense needs to address this point as in the following examples.

"What is your impressions of the reliability of testimony of eyewitnesses?"
"How accurate do you believe eyewitnesses are in describing what they see or experience?"
"How many of you believe that as long as there was nothing physically or mentally wrong with an eyewitness, such as his being under the influence or something similar, you can pretty much take the word of an eyewitness for what happened?"
Let's look a little closer at this issue.
"How many of you believe that an eyewitness can be mistaken in what he or she recalls about an event or attacker?"
"How many of you have heard of a situation where a witness has wrongly identified an assailant/attacker?"
"How many of you feel that people who witness a violent crime can be mistaken in identifying the assailant?"
"In your opinion, what kinds of things might affect the accuracy of an eyewitness's testimony?"

Jurors who doubt the fallibility of eyewitness identification under these circumstances, and hence respond negatively to this weakness, would be undesirable.

Finally, it is possible to take a strong point for the opponent and use it to one's own advantage. This situation arises when the opponent has some evidence (e.g., a "day-in-the-life" videotape) that arouses juror sympathy for the opponent or promotes a negative emotional reaction to one's own client. Explaining or possibly showing such evidence to potential jurors during voir dire can produce several benefits. First, it allows the lawyer to determine whether any jurors would be biased as a result of this evidence and, hence, subject to a challenge for cause. Second, with less extreme juror reactions, a heightened sensitivity or lack of sensitivity to this evidence may reveal a candidate for a peremptory challenge. Third, the context in which the lawyer presents the evidence can serve to defuse some of the negative reactions of jurors and even desensitize jurors to the evidence.

However, caution is necessary when using this approach. Particularly with defendants, it is a risky approach to use in situations where issues of liability or guilt are potentially favorable to the client and where showing the biasing evidence can produce a high level of bias in all jurors. Care should be taken not to prejudice the jury against the client before the case even begins. It is possible for the jurors' emotional reactions to color their interpretation of the liability evidence before the groundwork can be laid to defuse this adverse reaction.

It is important to discuss the evidence in the case that provides an advantage to the client. Asking jurors if they would ignore certain pieces of physical evidence or if they have any problems with such evidence can emphasize the strengths of one's case. For example, a prosecutor may ask the following questions:

"There will be tape recordings introduced at trial that reflect the conversations of the defendant in this case [concerning a particular aspect of this case]. How do you feel about the use of such tape-recorded conversations in a trial like this?"

or

"Would you have any reservations about considering this evidence in arriving at a decision concerning the guilt or innocence of the defendant?"

Strengths also appear as a function of the opponent's weaknesses. For example, in certain entrapment cases and organized crime cases, the prosecution often must put witnesses on the stand who have been involved in criminal activity. The defense should attack this weakness, addressing the lack of credibility of these witnesses on voir dire. Questions such as the following are helpful:

"Do you believe that criminals might try to pressure a person into illegal activity, if it means more money being paid to the criminal or less jail time for the criminal?"
"Do you believe that criminals might lie in order to get a better deal with the government?"
"What is your impression of witnesses who testify as a result of receiving money or special treatment from the government in terms of their willingness to tell the truth?"
The Nature and Extent of Pretrial Publicity

Most cases have little or no pretrial publicity. However, in cases where there is pretrial publicity, it is important to consider the potential impact of this information. Social science research on pretrial publicity has shown that it does influence jurors' decision making.2 Of critical importance is that research also indicates that jurors often do not recognize or admit bias produced by pretrial publicity. One study found that only 26 percent of jurors exposed to damaging pretrial publicity recognized their biases, while the remaining, supposedly "neutral" jurors who were exposed to damaging pretrial publicity still convicted the defendant at a 2-to-1 rate as compared to jurors not exposed to such publicity.3 Later studies have supported this finding.4 Similar results concerning the "hollowness" of assertions by respondents that they can be "fair and impartial" have been found in surveys and public opinion polling.5 To complicate matters even further, jurors tend to downplay their exposure to pretrial publicity, what has been termed the "minimization effect," making it difficult for lawyers to unravel the scope and impact of exposure to pretrial publicity.6 Finally, limiting instructions may be a potential remedy in terms of not considering outside information and setting aside any opinions formed. However, research generally has not supported the effectiveness of such instructions, with one study showing that both jurors and judges were equally...

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