Chapter 5 Conducting Voir Dire
Library | Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.) |
Objectives
• To explore communication skills that facilitate effective voir dire.
• To develop techniques that improve juror candor on voir dire.
• To capitalize on flexibility in approaching voir dire questioning.
• To explore the basic organization of the voir dire.
• To develop effective methods for improving voir dire conditions.
• To understand sixteen ways to improve group questioning.
• To maximize the effectiveness of judge-conducted voir dire.
Voir dire is a social interaction between lawyers, judges, and jurors. There is a give-and-take process basic to voir dire. To achieve the goals of voir dire requires great skill and attention to the process by lawyers. One fact should always be kept in mind: the primary goal of voir dire is to gather information from the jurors about their backgrounds, experiences, opinions, and beliefs. The remaining goals of education, rapport, and persuasion are secondary to discovering jurors' likely opinions, biases, and perspectives, and what role they will play in deliberations.
This chapter focuses on the task of conducting effective voir dire.1 Before we consider ways of conducting voir dire more effectively, however, it is necessary to address the obstacles faced in conducting voir dire.
Conducting a successful and informative voir dire is complicated by several factors:
Formal setting. The formal physical environment of the courtroom and the behavior and roles of the court personnel can intimidate many jurors, thus inhibiting their full participation in voir dire.
Subordinate position. Jurors are reluctant to be candid because they are in a subordinate position, not allowed to speak unless they have been given permission to do so.
Brief examination. The short duration of the questioning of any individual jurors minimizes their openness.
Public disclosures. The answers that jurors give (some of which may concern very personal information) usually are made in open court, which lessens their willingness to answer honestly.2
Evaluation apprehension. Jurors are often reluctant to answer candidly because of their concerns over what others might think of them.3
Failure to recognize bias. Beyond evaluation apprehension, jurors often fail to recognize potentially biasing experiences or opinions and, hence, do not admit bias, particularly as a result of pretrial publicity.4
Group questioning. The fact that the questioning of jurors often occurs in groups ranging from several jurors to twenty or more jurors leads to less disclosure and greater conformity to the opinions and behaviors expressed in these groups.5
Lack of lawyer questioning. In many federal courts, and in those state courts emulating the federal system, judge-conducted questioning dominates. The lack of lawyer participation in the questioning process hampers the ability to uncover important information about jurors.6
Judge overreliance on "confident" assertions of impartiality. Judges tend to place greater reliance on jurors' confident assertions of impartiality than what is justified.7
Whether through one or a combination of the above obstacles, researchers have found that candor and disclosure of information on the part of jurors is less than ideal.8 The task of conducting effective voir dire requires that lawyers take advantage of social interaction skills and capitalize on the structuring of the voir dire questioning to maximize juror candor and disclosure during voir dire.
Getting the information needed from potential jurors requires (1) good communication skills on the part of lawyers and (2) the use of interview techniques that encourage maximum participation by jurors.
Eight basic communication skills will encourage jurors to be more open with lawyers on voir dire.9 These skills are fundamental in achieving the goals of information gathering and rapport development.
Questioning style. How lawyers interact with jurors during the voir dire process plays a major role in the experience that jurors have during voir dire. The approach lawyers take influences how they interact both verbally and nonverbally with jurors. Lawyers can approach the voir dire process as an interrogation, a job interview, or a conversation.
Eight basic communication skills:
Have a conversation with jurors.
Show empathy.
Express sincerity and interest in what jurors are saying.
Maintain a warm, courteous, and friendly attitude.
Be supportive.
Be accepting, not judgmental.
Capitalize on juror identification through similarity.
Listen to jurors.
The most effective approach or orientation is to consider voir dire questioning as an opportunity to have a conversation with jurors. By focusing on having a conversation with jurors, several things happen. First, the questioner's body language and physical orientation to the juror will change. It becomes more open and welcoming toward the jurors. Second, a good conversationalist is interested (and shows interest) in what the jurors are saying. This is reflected in the use of verbal and nonverbal reinforcers (e.g., using phrases like "thank you" and "I appreciate your candor" and gestures such as nods and smiles) to encourage and maintain the "conversation" and the amount of time jurors spend talking as compared to the questioner talking to them. Finally, the questioner will use more open-ended questions (e.g., "How do you feel about . . . ?" Tell me your thoughts on . . . ?" "Why is that?") and rely less on closed-ended, yes-or-no type questions. Open-ended questions foster and maintain conversations with the added benefit of the focus being on the jurors themselves in terms of their thoughts, feelings, and experiences.
A second approach to voir dire is that of a job interview. Armed with a list of questions, the questioner determines if the potential jurors should get the "job" of being jurors in the case. Jurors are being "judged" and, as a result, they are likely to respond with their resume of "best" answers. Unfortunately, these answers are designed more for maintaining a good appearance or "looking good" than in revealing their true thoughts and feelings. There is always a considerable psychological distance between the job interviewer and the applicant, a distance that diminishes juror candor and honesty.
The third (and worst) approach to voir dire is that of an interrogation. The interrogation style of questioning communicates to jurors the impression that (1) the jurors have done something wrong and (2) it is up to the lawyer to find out what it is. This style of questioning is assertive, cold, distant, and less welcoming of the jurors and their answers. As a result, jurors become defensive, respond with minimal answers, and seek to avoid participation altogether—which is relatively easy to do when being questioned in a group. The psychological distance between the questioner and jurors created by the interrogation style of questioning is maximized, leading to minimal juror disclosure and participation during voir dire.
Whether questioning one juror, twelve jurors, or forty or more jurors, approaching voir dire questioning as a conversation will yield a more effective and productive voir dire.
Empathy. Jurors face a potentially uncomfortable and threatening situation in voir dire. Showing empathy for what jurors face is important. Acknowledging the jurors' discomfort and being supportive are important when jurors appear nervous or are having difficulty answering questions. The following statements are helpful in showing empathy with what the juror is going through.
"I understand that it's difficult to talk here in the courtroom. If there is anything I can do to make it easier, just let me know."
"I realize that some of my questions may be difficult to answer."
"I know that we usually do not think about these issues, but in this case it is important that we do so."
Being empathetic toward jurors will encourage them to do the hard work necessary to answer difficult questions.
Sincerity and interest. Jurors are more likely to be forthcoming about their opinions and experiences when lawyers are sincere in the questions they ask and express interest in what the jurors have to say. Failing to show an interest in what the jurors are saying closes the door to juror honesty and candor. The verbal and nonverbal communication of lawyers play a key role in the jurors' willingness to answer questions candidly. Lawyers should avoid shuffling papers, continually looking down at notes, searching through notes for the next question while the jurors are speaking, or taking excessive notes. These actions communicate that what jurors have to say is not important. Also, simply reading a list of questions or interrupting the jurors during their answers will cause the communication process to break down.
Showing an interest in what the jurors are saying is a key component in breaking down the barriers to juror disclosure and rapport. Facing the juror squarely with an open and relaxed posture, maintaining a moderate to high level of eye contact, and removing obstructions between the lawyer and the juror facilitates open communication. When sitting at a table, moving books to the side or even moving around to the side of the table will foster open communication in voir dire.
Warmth. Maintaining a warm, courteous, and friendly attitude with jurors is important. Jurors like lawyers who are pleasant and are willing to share aspects of their personal lives with them. Smiling where appropriate and maintaining an open and relaxed posture facilitates a positive impression. Being cold and aloof increases the "distance" between the lawyer and the jurors, placing an additional obstacle to juror disclosure.
Support. It is important to minimize any feelings of intimidation, threat, or embarrassment that jurors may experience. When a juror appears confused by a question, accept responsibility for...
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