Selecting the Jury at Trial: The Voir Dire

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 657-667

657

CHAPTER 28

SELECTING THE JURY AT

TRIAL: THE

VOIR DIRE

§ 28.01 Introduction

In a jury trial the voir dire is the process by which the actual trial jurors (and alternates)

are selected from the jury panel. Prior to the voir dire,counsel has had no real hand in

the jury selection process, apart from the possibility of attacking it here or there for

procedural defects. At the voir dire, counsel will have the opportunity to play a large

part in determining what particular jurors are going to sit on the trial of the case. S/he

will also have his or her first chance to talk to t hose jurors— directly or indirectly—and

to say some things to them that will strongly affect their attitudes toward counsel, the

respondent, and the case.

§ 28.02 Defense Objections to the Panel

Prior to the

Voir Dire

Before or at the time the panel is brought into the courtroom, counsel is given a list of

the individuals on it, ord inarily indicating names, addresses , and occupations. Counsel’s

previous investigation of the venirepersons, coupled with this list of those among them

who have been selected for the panel, may suggest some ground of challenge to the pa nel

collectively. See §§ 21.03 –21.0 4 supra. If counsel decides to make such a challenge, s/he

should do so before the panel is brought in to the courtroom. If t hat is not possible, s/he

should ask leave to approach the bench and should make the challenge out of the hear ing

of the prospective jurors. Counsel is hardly going to be received favorably by the jurors

if, on their first contact, counsel is cast in t he role of an objector—and one who opposes

their very presence in court.

§ 28.03

Voir Dire

Procedure Generally

Practice on voir dire differs widely from jurisdiction to jur isdiction. Its common features

are these: Prospective jurors are told something about the case and the parties and par-

ticipants in it. They are questioned, either individually or collectively or in both ways,

to determine whether any of them are disqualified or subject to challenge and whether

any should, for some reason, be excused. The prosecution and defense are given the