Chapter 3 SELECTING A JURY...Chapter 3 SELECTING A JURY 3.01 INTRODUCTION The first phase of the trial is the selection of a jury. A panel of jurors is brought into the courtroom,

Chapter 3

SELECTING A JURY

§ 3.01 INTRODUCTION

The first phase of the trial is the selection of a jury. A panel of jurors isbrought into the courtroom, given some preliminary information about thecase from the judge and the procedure for selecting which of them will serve.A few are selected at random to sit in the jury box. Then for the next severalhours, the judge and attorneys will question these prospective jurors abouttheir experiences, backgrounds, and attitudes. Any jurors who seem to harborspecific biases and prejudices concerning the people involved in the case orthe type of case will be excused, and others called up to take their places. Thosewho remain seated in the jury box at the end will make up the jury. It is aclumsy and imprecise procedure for selecting a jury, and one that carries noguarantee that those who remain as jurors will be fair and impartial.

Attorneys hold different views about what you should expect to accomplishand the importance of the jury selection phase of the trial. Clearly, theoutcome of some cases — especially close ones — can hinge on the politicaland social views and biases of the jurors who happen to get selected. Everyattorney talks about “good” juries and “bad” juries.

The harder question is whether an attorney’s role in the jury selectionprocess has much of an effect on the composition of the jury. Can you get toknow two dozen people well enough in a few hours of formal questioning totell who will make good jurors for your side and who will not? There is noagreement on the answer.

There are four main goals you can try to accomplish during the jury selectionphase:

● Because this is the first time the jurors see you and your client,make a good first impression. Making a good impression includesshowing the jurors that you care about them and are interested inwhat they have to say.

● Try to identify and remove the most obviously biased jurors likelyto vote for your opponent.

● Begin the process of persuasion by introducing the jury to yourtheory of the case, your client and main witnesses, and the keypieces of your evidence.

● Do all this without taking too long or putting the jury to sleep.

There is no consensus about how to achieve these goals. Attorneys employmany approaches and hold many different opinions, but have few realanswers. To most attorneys, jury selection is the least satisfying part of thetrial.

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NOTE

Attorney-vs. judge-conducted voir dire. There is a great debate in legalcircles over whether it is better to have the judge ask questions, therebypreventing “abuses” by the attorney and saving time, or to have the attorneyask questions because he or she is in a better position to probe into potentialbiases likely to be relevant to the case. Empirical studies show that bothpremises are correct — judges are more efficient, but attorneys elicit morereliable information. Susan Jones, Judge Versus Attorney-Conducted VoirDire: an Empirical Investigation of Juror Candor, 11 LAW & HUMAN BEHAVIOR

131 (1987); David Suggs and Bruce D. Sales, Juror Self-Disclosure in the VoirDire: A Social Science Analysis, 56 IND. L.J. 245, 251–52 (1981).

§ 3.02 EXAMPLE

Because it often takes two hours or more to conduct a complete voir direexamination of prospective jurors, it is not possible to include an example ofan entire voir dire examination. The following abbreviated example1 shouldat least give you a feel for the process:

THE COURT: Ladies and gentlemen of the jury. In a few minuteswe will begin the selection process for the case of Noble v. WabashValley Electric Company. This is a civil case in which the plaintiffseeks to recover damages for injuries alleged to have been causedthrough the fault of the defendant. The basic allegation is thaton February 1, 2001, the plaintiff, a twelve-year-old boy, climbeda utility pole owned and maintained by the Electric Company, andcame into contact with a high voltage line, resulting in seriousinjuries. The plaintiff claims that the defendant failed to takeproper safety precautions. The defense claims contributory negli-gence — that the plaintiff’s injuries were wholly or partly theplaintiff’s own fault. The plaintiff is still underage, so the suit is being brought onhis behalf by his mother, Isabel Noble. They are represented byDavid Durm. The defendants, at the far table, are represented byMelissa Luftig. Under our procedures, we use a six-person jury in civil cases.We will call six of you up to the jury box where you will be ques-tioned by the attorneys. Those of you who remain in the audienceshould listen closely to the questions also because you may becalled up to take the place of one of the first six. It is veryimportant that each of you keep your voices loud when answeringquestions so that we can all hear you.

THE COURT: Mr. Clerk, will you call the first six jurors?

THE CLERK: Please answer when your name is called and take a seatin the jury box. Christy Short. Carlos Morales. Jay Meisenhelder.

1 Some parts of this example are adapted from PHILIP B. HEYMANN & WILLIAM H. KENETY,THE MURDER TRIAL OF WILBUR JACKSON 47–66 (1975) and WARD WAGNER, ART OF ADVOCACY

— JURY SELECTION §§ 4.00 to 4.45 (1981) (voir dire by James Hulverson).

86 SELECTING A JURY CH. 3


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Brett Nelson. Marco Molina. Gina Ross. [Whereupon all prospective jurors were duly sworn.]

THE COURT: Mr. Durm, you may proceed.

MR. DURM: Thank you. May it please the court and you, members ofthe panel. My name is David Durm, and I represent the boy whowas crippled and his family. This is his mother, seated at our table.The child, Dave Noble, is not here. He will not be here throughmuch of the trial for two reasons. First, of course, he has to be inschool. Also, we decided — his parents and I — that it would bebetter if he did not hear all the testimony about how serious,permanent, and hopeless his condition is. Can you understandthat? Would any of you hold it against him in any way becausehe is not here?

A: (No response.)

MR. DURM:Seated over there is Ms. Luftig, an attorney with Harkins,Harrell, Boyd, and Long. They represent the defendant, WabashElectric Company. Do any of you know either myself or the defenselawyer? Do any of you know anything about or have you heardanything about the defense law firm? Mr. Meisenhelder, do yourecognize the names of any of the lawyers?

JUROR MEISENHELDER: No.

MR. DURM: How about you, Ms. Short?

JUROR SHORT: Not that I know of.

Q: By the way, do you prefer being called Ms. or Mrs.?

A: I prefer Ms., thank you.

Q: Ms. Ross, which do you prefer?

A: I know it’s unfashionable, but I’ve been called Mrs. Ross for thirtyyears, and I’d like to be called Mrs.

Q: The plaintiff — that is, the injured person who had to bring thesuit — is Dave Noble, a fourteen-year-old boy. When he was twelve,in February 2001, he climbed up an uninsulated utility pole andwas electrocuted — excuse me, I don’t mean he was killed; he wascrippled from a potentially lethal seven thousand volts of electricity.His parents are Pete and Isable Noble, of 3614 Sunnyside Road.Dave was attending Washington Middle School at the time. Do anyof you know the Noble family? Mr. Nelson, I noticed from yourquestionnaire that you have a fifteen-year-old daughter. Did shego to Washington Middle School?

A: No. She went to the Lakeview Christian Academy.

Q: Mr. Morales, you have a twelve-year-old. Does he go to Washington?

A: Yes, he does.

Q: Has your son said anything about this case or about a boy fromthe school who was horribly injured a couple of years ago?

A: No.

§ 3.02 EXAMPLE 87



Q: It would not prejudice you in any way because your son and Davidgo to the same school, would it?

A: No, of course not.

Q: Does anyone else have any connections to Washington School orthe Nobles?

A: (No response.)

Q: The defendant is Wabash Valley Electric Company. Do any of youhave friends or relatives who work for the Electric Company?

JUROR MORALES: I have a cousin who works for them in Martinsville.

Q: How often do you see your cousin, Mr. Morales?

A: I don’t.

Q: What?

A: I don’t see him.

Q: When was the last time you saw him?

A: About five years ago at a wedding.

Q: Would this influence you in any way, that your cousin works forthe defendant?

A: No.

Q: Anyone else. Mr. Molina?

A: Well, I have a neighbor who works for them. I see a company truckparked in their driveway.

Q: Do you know these neighbors, or socialize with them?

A: No.

Q: Would the fact that you have a neighbor who works for the defen-dant cause you to favor the defendant?


Q: Now, I know that we all have had some dealings with the defen-dant, because we have to pay our electric bills. And I am sure thatwe all worry about our electric bills because they keep going up.In this case, we are asking for five million, six hundred thousanddollars in compensation. Does anyone worry that a large verdictmight cause your utility rates to go up? Ms. Short?

A: I hadn’t thought of it that way, but I guess they might.

Q: Mr. Morales?

A: No, I don’t worry about it. They cover this whole part of the stateand have millions of customers, so even if they did raise rates itwouldn’t be by much.

Q: Ms. Ross?

A: I don’t know. I think I agree with that other man that it wouldn’tamount to much on my bill.

Q: Mr. Meisenhelder?




A: I do worry about it. They always pass on the costs to the customer.Like when Enron went bankrupt or these nuclear plants that costbillions, they just go to the state utility commission and get anothertwenty percent rate increase.

Q: Does that mean you would have reservations about voting for alarge verdict?

A: I don’t know. It wouldn’t prove anything. It wouldn’t punish theElectric Company because they would just pass on the cost.

Q: Well, do you understand that the purpose of this suit is not topunish the defendant, but to decide how much money will compen-sate Dave Noble for a life in a wheelchair?

A: Yes.

Q: Do you have any problems with compensating Dave for his pastand future medical costs?


Q: So you could award large damages to cover real medical costs, eventhough your electric bill might go up a few cents?

A: Certainly.

Q: And if we proved that David will never be able to hold a job becauseof his injuries, could you compensate him for that?

A: Yes.

Q: Mr. Molina, do you also agree that an injured person should becompensated for being unable to work?

MS. LUFTIG: I object. He’s asking for a legal opinion.

MR. DURM: Let me rephrase. If the judge instructed you that you canconsider lost earning capacity in awarding damages, could you doso?

A: Yes.

Q: You could follow the judge’s instructions?

A: Yes.

Q: Mr. Nelson?

A: Yes, that only seems fair.

Q: If the judge instructed you that you can also compensate David forsuffering and pain, would that present any problems?

A: No.

Q: Would anyone have any problems following the law and consideringall three kinds of damages — medical expenses, lost earningcapacity and pain and suffering — in arriving at a fair verdict?

VARIOUS JURORS: No.

Q: Mr. Meisenhelder, if you decided that we had proved that thesedamages combined added up to five million, six hundred thousand

§ 3.02 EXAMPLE 89



dollars, would you reduce that amount out of concern about higherelectric bills?

A: No, I guess that would be unfair.

Q: Ms. Short, could you return a verdict of several million dollars ifthat is what it would take to compensate David?

A: That seems like a lot, but I could vote for it if you proved it.

Q: Ms. Ross?

A: Yeah.

Q: Mr. Morales?

A: Yes, if you proved it.

Q: Mr. Molina?

A: Could I vote for that much money?

Q: Yes.

A: I think so.

Q: You seemed hesitant.

A: That’s a lot of money. I don’t see how you could prove it. I thinkthere are a lot of verdicts that are too big.

Q: We are confident we can justify what we’re asking for in this case,but that will have to wait for the witnesses. I am only askingwhether you could vote for a five million dollar verdict if you werepersuaded by the evidence that that figure was fair, or whether youmight return a lower one just because the defendant is the ElectricCompany.

A: Oh. No, I would vote for whatever I thought you had proved.

Q: Now, in connection with Dave’s injuries, I need to ask somequestions. David is, as you will see, confined to a wheelchair, andhe has lost his arms. He now has mechanical arms. Does anyoneknow anyone or have any relatives in wheelchairs or who have towear artificial limbs? Yes, Ms. Ross?

A: My father’s in a wheelchair.

Q: Ms. Ross, I don’t mean to pry, but sometimes we have to askquestions about personal matters. In this suit there is a lot at stake,and we have to be certain that the jurors who decide it can becompletely impartial. Sometimes there are personal experiencesthat jurors have had that could cause them to react very emotion-ally or would make them uncomfortable sitting on a jury. Do youthink that it would bother you or influence you in any way thatyour father is in a wheelchair like David?

A: No.

Q: Was he injured, is that why he’s in a wheelchair?

A: No. He’s very old and in a nursing home and has trouble with hislegs.




Q: Could you put this out of your mind and decide this case solely onthe facts presented?

A: I think so.

Q: Does anyone else have any experience with disabled people? Yes,Mr. Molina?

A: There’s a family at our church that has a daughter in a wheelchair.

Q: Would that affect you in any way?

A: No. I don’t know them very well. I just see them at Mass.

Q: I have a few follow-up questions based on those jury questionnairesyou all filled out. Ms. Ross, I noticed that you do volunteer workat County Memorial Hospital, is that right?

A: Yes.

Q: In fact, you are president of the Women’s Auxiliary, are you not?

A: Yes, I am.

Q: Do you work with the children’s ward?

A: Yes, quite a bit.

Q: David Noble was in that ward for more than two months, in Febru-ary and March, 2001. Might you have seen him or worked with him?

A: No. When I said we worked with children, I meant the Women’sAuxiliary did. We also run the gift shop, and I have worked onlyin the gift shop since about 1996. I did work on the wards beforethen.

Q: So you’ve been around hospitals and doctors for some time?

A: Yes, almost fifteen years.

Q: In that time I expect you’ve become pretty familiar with medicineand hospital care and so on?

A: Well, a little.

Q: Do you know Drs. Ted Fisher, Anthony Yorio, and Carrie Soder?

A: Yes.

Q: They may be called as witnesses in this case. Without going intoany details, is there anything you know about any of these doctorsthat would cause you to question their expert medical judgmentin this case?

A: No, they’re all good doctors.

Q: Does anyone else know these doctors or has anyone heard of them?

VARIOUS JURORS: No.

Q: So can I take it that you will all evaluate their testimony basedsolely on what you hear in the courtroom?

VARIOUS JURORS: Yes.

Q: Does anyone else have any knowledge of medicine or hospitals? Yes,Mr. Nelson?

§ 3.02 EXAMPLE 91



A: I used to work at Crosstown Pharmacy.

Q: Did you have anything to do with prescription medicine?

A: No. I did some stock work.

Q: But you probably became familiar with some prescription drugs?

A: Sort of. I’m not sure I remember much.

Q: The doctors in this case may testify that they prescribed certainstrong pain-killers for David, like Demerol or Percodan. Do youknow much about them?

A: Not much.

Q: Is there anything in your experience that would cause you toquestion a doctor who said these were strong, dangerous drugs onlyprescribed in cases of extreme pain?

A: No. I think that’s right.

Q: Mr. Meisenhelder, did you serve in the armed forces?

A: Yes.

Q: What branch?

A: Infantry.

Q: Where did you serve?

A: Vietnam.

Q: During the war?

A: Yes.

Q: Did you know people who were severely injured?

A: Yes, I did.

Q: Did you know anyone who lost both arms, like David did?

A: No, I don’t think so. I knew people who lost arms or legs, but I can’tremember anyone who lost both arms.

Q: How did this kind of injury affect you?

A: It’s terrible. I mean, their lives are ruined.

Q: Would your experiences make it hard to be a fair and impartialjuror in this case?

A: No, I don’t think so.

Q: Mr. Nelson, you work at Westinghouse, is that right?

A: Yes.

Q: Are there any people working there who have lost both arms?

A: No.

Q: Ms. Ross, you work at Sears?

A: Uh huh.

Q: Do you know if there are any people who have lost both armsworking there?




A: I don’t think so.

Q: Mr. Morales, you work for the post office, do you not?

A: Yes.

Q: Are there any people without arms there?

A: No.

Q: Ms. Short, are there any people without arms working at your realestate agency?

A: No.

Q: Do any of you have anything to do with hiring or personnel?

VARIOUS JURORS: No.

Q: So none of you know whether anyone as handicapped as David hasever applied for a job or been hired where you work?

VARIOUS JURORS: No.

Q: Mr. Meisenhelder, you are retired, but did you ever work at thesame job as a person without arms?

A: No.

Q: Mr. Molina, do you know anyone without arms who has a job?

A: Not exactly. There’s a receptionist at the hospital who’s disabledand is in a wheelchair, but she has some use of her arms or at leastone arm is okay, because she can use the telephone.

Q: So she uses her arms, or at least one arm?

A: Yes.

Q: I asked these questions because there may be testimony frompeople at job agencies and who work in job placement aboutwhether a person without arms can find a job. Is there anythingthat any of you have seen that would cause you to question a jobcounselor who said it was very unlikely that a person without armscould find and keep a job?

VARIOUS JURORS: No.

Q: Is there any reason why any one of you could not be fair andimpartial?

VARIOUS JURORS: No.

MR. DURM: No further questions.

NOTE

Other examples. You can find other good examples of voir dire examinationsin FRANCIS X. BUSCH, LAW AND TACTICS OF JURY TRIALS, vol 1: 778–96, 849–62(1959); JAMES W. JEANS, LITIGATION, at § 8.22 (2d ed. 1992); PATRICK L.MCCLOSKEY & RONALD L. SCHOENBERG, CRIMINAL LAW ADVOCACY — JURY

SELECTION (2001); and HERBERT J. STERN, TRYING CASES TO WIN vol. 1: 523–620 (1991).

§ 3.02 EXAMPLE 93



§ 3.03 THE TERMINOLOGY OF JURY SELECTION

The terminology of jury selection can be confusing. There is no consistencyamong states. Some use descriptive terms, like “prospective juror,” which areeasily understood. Others use old common-law terms, such as “the venire,”with which you probably are not familiar. Common terms used to describethe prospective jurors at various stages of the selection process, are these:

● Venue. The venue is the judicial district from which jurors aredrawn. It may be a single county, or several counties joined in ajudicial district.

● Jury wheel. In each judicial district, a jury commissioner preparesa list of the names and addresses of eligible jurors in the district.The list is usually drawn from sources like voting lists, propertytax rolls, phone books, and driver’s license records. This master listmay contain anywhere from 25% to 75% of the eligible jurors,depending on how recently it has been updated and how diligentthe commissioner is. It may be called the jury wheel, jury roll, array,or master jury list.

● Venire facias. For each trial term of court (a designated periodin which jury trials are scheduled to begin), the jury commissionerwill issue summonses to a large number of the people whose namesare in the jury wheel. The summons is often called a venire facias.From his or her experience, and in consultation with the chief judgeof the district, the commissioner will summon a sufficiently largenumber of people so that the desired number will actually show up.It is common for anywhere from 40% to 80% of jurors summonedfor jury duty to simply not show up.

● Venire. Many people who arrive for jury duty assert occupationaland health reasons why jury service would be inconvenient. Someare excused, others are allowed to postpone their jury duty untilanother time. After the commissioner passes on excuses, those whoare left constitute the venire, or jury pool. These are the jurors whowill make up any trials that take place that week. Courthouses maycontain anywhere from one to thirty or more courtrooms. In thelarger districts, there may several jury trials taking place at once.The venire must therefore contain enough jurors to handle multipletrials, so it is common for venires to include over 200 jurors. If ahigh-publicity trial is expected in which many jurors will have tobe excused because of exposure to pretrial publicity, a special veniremay be summoned that contains 500 or more people.

● Tale. If the commissioner miscalculates and runs out of people forthe venire, there is not enough time to send more summonsesthrough the mail. In this circumstance, the presiding judge has thepower to order the sheriff to go out and round up the necessarynumber of people needed to fill the venire. This is called summoninga tale, and usually consists of sending a couple of deputy sheriffsto Wal-Mart to issue jury summonses to everyone who is shoppingthere.




● Panel. When a judge is ready to begin a jury trial, he or she notifiesthe jury commissioner, who sends up a panel of jurors. The panelwill contain more jurors than needed for the particular jury, toaccount for the fact that some will be disqualified or challenged bythe attorneys. Judges commonly request panels three or four timeslarger than the ultimate jury, e.g., a panel of thirty-six to forty-eightif the judge is using a 12-person jury. Members of the panel notselected for a particular jury return to the venire.

● Voir dire. The judge and/or attorneys will ask questions of thepanel and base their decisions on whom to keep and whom toremove on the answers they get. The questioning process is calledvoir dire.

● Jury. When the process is complete, the 6 or 12 jurors who remainconstitute the jury. Trial juries are sometimes called “petit” juries,to distinguish them from the grand juries that issue indictmentsin criminal cases. It is common for a jury to have 2 alternate jurors.

§ 3.04 DISQUALIFICATIONS AND EXEMPTIONS

Not everyone is eligible for jury duty. Every state has a statute thatdescribes the basic qualifications needed to serve on a jury. These statuteswill set forth qualifications such as:

● Be a citizen of the State and resident of the county

● Have not served as a juror during the preceding two years

● Be 18 years of age or over

● Be mentally competent

● Be physically able to participate in the trial, including havingadequate ability to see, hear, and speak.

● Understand the English language

● Have not been convicted of a felony or pleaded guilty to a felony

Other statutes specifically exempt persons who have certain occupationsfrom jury duty. An exemption is like a privilege. It belongs to the juror, whomay assert it and be excused, or waive the exemption and serve. A party maynot challenge such a juror for cause on the ground that he or she is exempt.Many states exempt attorneys, physicians, dentists, pharmacists, militarypersonnel, fire fighters and law enforcement officers, clergy, school teachers,and government officials. Some give an exemption to people over age 70.Almost every occupation has been exempt in at least one state at one time,including everything from embalmers and fruit growers to librarians andschool janitors.2 Disqualified and exempt jurors are generally sent home bythe judge or clerk long before they ever get called to a particular courtroom.

2 1 FRANCIS X. BUSCH, LAW AND TACTICS IN JURY TRIALS 457–60 (1959).

§ 3.04 DISQUALIFICATIONS AND EXEMPTIONS 95



NOTE

The Americans with Disabilities Act. The A.D.A. limits the power of statesto automatically exclude prospective jurors with “physical infirmities.” Deci-sions must be made on a case-by-case basis. See Galloway v. Superior Court,816 F.Supp. 12 (D.C.D.C., 1993) (blind juror cannot be excluded withoutspecial finding).

§ 3.05 THE QUEST FOR A FAIR AND IMPARTIAL JURY

The Sixth Amendment guarantees a defendant the right to an impartialjury. The Due Process Clause assures all civil litigants a fair trial, whichpresupposes a fair and impartial jury. Yet we all know that people have biasesand prejudices that will make attaining a truly impartial jury difficult. Themodern jury selection process contains a number of basic rules and proceduresdesigned to reduce the likelihood that these natural human biases andprejudices will have a disproportionate effect on the outcome of trials. TheSupreme Court has set three minimal standards intended to ameliorate theeffect of juror bias: 1) jury venires and panels must be drawn from a fair cross-section of the community so that a wide range of viewpoints will be repre-sented; 2) trial juries must consist of at least six people; and 3) individualjurors must demonstrate minimal impartiality by promising to put aside theirbiases and decide the case on its merits. In addition, states generally havestatutes that call for the automatic removal of jurors who fall into certaincategories involving a high likelihood they will be biased, such as familyrelationships; and which also give the parties the ability to challenge or strikeadditional jurors the attorneys feel will be hostile to their cases.

[A] JURIES MUST BE DRAWN FROM A “FAIR CROSS-SECTION” OF THE COMMUNITY

The Supreme Court has established that the primary constitutional require-ment for a fair jury is that the decisions concerning whose names are put onthe jury wheel, who gets summoned, and who gets called for an individualpanel, must be made by random selection from among everyone in thecommunity. No distinct and cognizable group may be systematically excludedfrom jury service. In this way, all viewpoints will be represented and no onegroup’s prejudices can dominate the jury. This is known as the “fair cross-section requirement.”

TAYLOR V. LOUISIANA419 U.S. 522 (1975)

When this case was tried. . . the Louisiana Constitution. . . . provided thata woman should not be selected for jury service unless she had previously fileda written declaration of her desire to be subject to jury service. . . . The issuewe have, therefore, is whether a jury-selection system which operates toexclude from jury service an identifiable class of citizens constituting 53% ofeligible jurors in the community comports with the Sixth and FourteenthAmendments. . . . Our inquiry is whether the presence of a fair cross section




of the community on venires, panels, or lists from which petit juries are drawnis essential to the fulfillment of the Sixth Amendment’s guarantee of animpartial jury trial in criminal prosecutions.

The Court’s prior cases are instructive. Both in the course of exercising itssupervisory powers over trials in federal courts and in the constitutional con-text, the Court has unambiguously declared that the American concept of thejury trial contemplates a jury drawn from a fair cross section of the commu-nity. A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940),that “[it] is part of the established tradition in the use of juries as instrumentsof public justice that the jury be a body truly representative of the community.”. . . The purpose of a jury is to guard against the exercise of arbitrary power— to make available the commonsense judgment of the community as a hedgeagainst the overzealous or mistaken prosecutor and in preference to theprofessional or perhaps over-conditioned or biased response of a judge. Duncanv. Louisiana, 391 U.S., at 155–156. This prophylactic vehicle is not providedif the jury pool is made up of only special segments of the populace or if large,distinctive groups are excluded from the pool. Community participation in theadministration of the criminal law, moreover, is not only consistent with ourdemocratic heritage but is also critical to public confidence in the fairness ofthe criminal justice system. Restricting jury service to only special groups orexcluding identifiable segments playing major roles in the community cannotbe squared with the constitutional concept of jury trial.

We are . . . persuaded that the fair-cross-section requirement is violatedby the systematic exclusion of women, who in the judicial district involvedhere amounted to 53% of the citizens eligible for jury service. This conclusionnecessarily entails the judgment that women are sufficiently numerous anddistinct from men and that if they are systematically eliminated from jurypanels, the Sixth Amendment’s fair-cross-section requirement cannot besatisfied.

The States are free to grant exemptions from jury service to individuals incase of special hardship or incapacity and to those engaged in particularoccupations the uninterrupted performance of which is critical to the commu-nity’s welfare. Rawlins v. Georgia, 201 U.S. 638 (1906). It would not appearthat such exemptions would pose substantial threats that the remaining poolof jurors would not be representative of the community. A system excludingall women, however, is a wholly different matter. It is untenable to suggestthese days that it would be a special hardship for each and every woman toperform jury service or that society cannot spare any women from theirpresent duties. . . .

It should also be emphasized that in holding that petit juries must be drawnfrom a source fairly representative of the community we impose no require-ment that petit juries actually chosen must mirror the community and reflectthe various distinctive groups in the population. Defendants are not entitledto a jury of any particular composition, Fay v. New York, 332 U.S. 261, 284(1947); Apodaca v. Oregon, 406 U.S., at 413 (plurality opinion); but the jurywheels, pools of names, panels, or venires from which juries are drawn mustnot systematically exclude distinctive groups in the community and therebyfail to be reasonably representative thereof.

§ 3.05 THE QUEST FOR A FAIR AND IMPARTIAL JURY 97



STATE V. HASKINS450 A.2d 828 (Conn. 1982)

The defendant Haskins claims that the county jury commission violated hisright to a jury drawn from a fair cross-section of the community by excludingparticular groups from the jury array: (1) naturalized citizens opposed to thepresent form of government in the United States; (2) voters with arrestrecords; (3) people living in apartments or not listed in the city directory; (4)people with insufficient formal education; (5) the elderly; (6) clergy; (7)teachers; (8) students; (9) low-income persons; [and] (10) people in particularneighborhoods. Binding authority addressing constitutional claims to the juryarray has thus far recognized as cognizable groups only blacks, women; [and]Mexican-Americans. . . . We think the better view is to find . . . groupscognizable only upon a showing. . . that the group has “a definite composi-tion.” That is, there must be some factor which defines and limits thegroup. . . . Secondly, the group must have cohesion. There must be a commonthread which runs through the group, a basic similarity in attitudes or ideasor experience which is present in members of the group and which cannot beadequately represented if the group is excluded from the jury selectionprocess. Finally, there must be a possibility that exclusion of the group willresult in partiality or bias on the part of juries hearing cases in which groupmembers are involved. That is, the group must have a community of interestwhich cannot be adequately protected by the rest of the populace.

The defendant has not made the requisite showing of cohesiveness to renderthese ten categories cognizable groups within New Haven County. With regardto clergy, the elderly, certain naturalized citizens, teachers, and students, thedefendant has advanced a theory of cognizability based on percentages of thepopulation and nothing more. With regard to voters with arrest records, peopleexcluded from the city directory and apartment dwellers, people withoutsufficient formal education, and people residing in certain neighborhoods, wecannot accept the defendant’s theory that decisions finding unlawful discrimi-nation against such people in other contexts, without more, render them cogni-zable as groups for purposes of a challenge to a jury array.

[B] JURY SIZE

The second constitutional requirement for a fair jury is that it must consistof enough people to assure that the evidence is thoroughly discussed and thatthe influence of one or two strong-willed jurors is minimized. The Court hasset that minimum number at six.

You probably grew up thinking that juries consist of twelve people. Histori-cally, they did. The large number was designed to promote group deliberation,insure resistance to outside attempts at intimidation, to provide a fairpossibility for obtaining a representative cross-section of the community, andto maximize the reliability of its verdicts by reducing the chance that biaswill play a large role in its decision. However, in the 1970s, the Supreme Court




held that the number twelve was a mere historical accident of no constitu-tional importance. What counted was that the jury be large enough to fulfillits important mission of representing the community in a fair, impartial, andthoughtful manner. After reviewing some empirical research on jury delibera-tions and jury size, the Court held that as long as the jury contained at leastsix people, it could adequately serve its core functions. Beyond that, stateswere free to determine for themselves what the ideal jury size was — twelve,eight, or six.3

[C] STRIVING FOR JUROR IMPARTIALITY

The third constitutional requirement of an impartial jury is that theindividuals who sit on it must be reasonably fair and able to put aside theirbiases and decide the case on its merits. It is, of course, beyond the powerof the courts to force an individual juror to deliberate fairly. The SupremeCourt has therefore set only a minimal constitutional requirement: the judgemust ask prospective jurors at least a few questions (or allow the attorneysto inquire) about any obvious biases that could affect how a juror votes onthe case, and must elicit from them a general promise that they will put asidetheir biases and decide the case on its merits.

The Court held in Ham v. South Carolina, 409 U.S. 524 (1973), that whenan African-American civil rights worker was charged with a crime in SouthCarolina, the judge had to ask jurors about possible racial prejudice. The trialjudge has broad discretion over the voir dire, and is not required to put thequestions in any particular form, or to ask any particular number of questions,as long as the questions are sufficient to focus the attention of prospectivejurors on any racial prejudice they might entertain. The Court was carefulto distinguish prejudices that might actually cause a juror to convict aninnocent person, such as racial bias, from the host of lesser prejudices we allharbor that are unlikely to significantly affect a jurors’ view of the case, suchas bias against people with beards.

Three years later, in Ristaino v. Ross, 424 U.S. 589 (1976), the Courtwatered down this rule. It held that Ham did not necessarily require a specificinquiry into biases even as strong as racial prejudice. Rather, it was up tothe trial judge to consider the totality of the circumstances to decide whethera bias was likely to interact with the specific facts of the case in a way thatcould produce a miscarriage of justice. It distinguished cases like Ham, whicharose in the context of a trial of an African-American civil rights worker whosework had already been the focus of community animosity, and who wasclaiming that white police framed him because of his racial activism, fromroutine cases in which the defendant was black and the victim or witnesseswhite. Only in the former is inquiry into specific biases required. In the routinecase, “the State’s obligation . . . to impanel an impartial jury generally canbe satisfied by less than an inquiry into a specific prejudice feared by thedefendant.”

In Smith v. Phillips, 455 U.S. 209 (1982), the Court gave some clarificationas to what it meant when it said that the requirement of juror impartiality

3 See Williams v. Florida, 399 U.S. 78 (1970) (criminal case); Colgrove v. Battin, 413 U.S. 149(1973) (civil cases); Ballew v. Georgia, 435 U.S. 223 (1978) (5-person juries too small).




could be satisfied by “less than an inquiry into a specific prejudice.” The caseinvolved a juror in a criminal case who submitted during the trial anapplication for employment as an investigator in the District Attorney’s Office.The Court held that no unconstitutional bias was to be imputed to the juror.He had been questioned generally and had affirmed under oath that he wouldbe fair and impartial. The Court held that this was enough. Due process meansa jury capable and willing to decide the case solely on the evidence before it,and a trial judge ever watchful to prevent prejudicial occurrences and todetermine the effect of such occurrences when they happen.

The Supreme Court’s decisions are less than satisfying. They have anostrich-like quality to them, in which the Court’s apparent inability to see thelikelihood of juror bias seems like deliberately putting its head in the sand.The lower courts have generally not followed the Supreme Court’s minimalrule, but have imposed a more vigorous standard in which the fairness of thejury depends on the judge conducting (or permitting the attorneys to conduct)a legitimate, probing inquiry into the possibility of juror bias. The followingcase is typical.

FIETZER V. FORD MOTOR CO.622 F.2d 281 (7th Cir. 1980)

Defendant Ford Motor Company (Ford) appeals from a jury verdict findingthe defendant eighty-five percent comparatively negligent for the injuries suf-fered by plaintiff Sheryn Kautz Fietzer when the Ford Mercury Comet whichshe was driving was struck from behind [and the gas tank exploded].

It is well settled that the trial court has great discretion in determining whatquestions may be asked venire people. . . . The substance of voir dire,however, is subject to the right of the parties to have an impartial jury. Courtshave consistently held that the trial court, when endeavoring to preserve thatright, should permit a reasonably extensive examination of prospective jurors[for bias]. In Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir. 1965), a personalinjury case, the court addressed the policy which supports probing voir direexamination:

A jury’s impartiality may not be assumed without inquiry, as in thecase of a judge. Jurors are drawn from the general body of thecommunity for a short term of service, usually lasting a few weeks,and then return to their customary occupations with neither trainingnor traditions of impartiality. They must often be unaware of theirown disqualification in specific cases, especially since the standardsfor jury service differ in various parts of the country. Litigantstherefore have the right, at the least, to some surface informationregarding the prospective jurors. . . .

Id. at 779 (footnotes omitted). . . . “Thus it is essential to explore thebackgrounds and attitudes of the jurors to some extent in order to discoveractual bias, or cause.” [United States v. Dellinger, 472 F.2d ] at 367 . . . Inits entirety, the examination must reveal inquiry adequate “to call to theattention of the veniremen those important matters that might lead them to




recognize or to display their disqualifying attributes.” United States v. Lewin,supra, 467 F.2d at 1138.

The trial court chose to conduct voir dire in this case. In addition to askingthe prospective jurors certain stock questions such as name, age, address,occupation, spouse’s occupation, level of education, and acquaintance with theattorneys involved in the case, the extent of the court’s interrogation of thejurors was as follows.

1. Would the juror be available for a trial lasting one week or more?

2. Were any jurors hard of hearing?

3. Did they work for or have close dealings with Ford?

4. Whether the juror had had a claim for personal injuries either as theresult of an automobile accident or any other kind of an incident?

5. Whether there was any reason whatsoever why the person could not sitas a juror and decide the case fairly and impartially based upon the evidencesubmitted?

6. Whether any juror worked on a swing shift or the night shift?

Ford requested the trial court to ask the jurors several additional questionswhich focused on the particular facts of the case. Those included whether anyjuror had been in a rear-end collision, whether any juror had been a witnessto an accident involving fire, and whether any juror or member of his or herfamily had ever suffered burn injuries, whether any juror or member of hisor her family had been involved in an automobile accident producing injury,whether any juror ever owned a Mercury Comet and his or her experienceswith it, whether any juror had experience in engineering or automotivemaintenance, and whether any juror was employed on a swing shift. With theexception of the last question, the court refused to inquire into those areas.The trial court also denied Ford’s request to ask the jurors whether they wereaware of a newspaper article which appeared three days before the trial inThe Milwaukee Journal, the newspaper with the largest circulation inWisconsin. The article, which ran on the front page of the paper bearing theheadline, “Fuel Tank Peril Cited in Mavericks, Comets,” concerned findingsannounced by the National Highway Traffic Safety Administration in regardto fuel tank defects in Comets and Mavericks. . . .

After a review of the transcript of the voir dire, we conclude that Ford’sright to an impartial jury . . . was impaired by the district court’s failure tosufficiently probe the jury. . . . The focus is exclusively on whether the proce-dure used for testing impartiality created a reasonable assurance thatprejudice would be discovered if present.” We find that no such assurancecould be found from the voir dire examination in this case.

Most states have statutes that require the removal of biased jurors. Thesestatutes set up a procedure called a “challenge for cause,” through which anattorney may request that the judge remove a prospective juror who falls intoone of the following categories:




1) Has been involved in any legal proceedings related to the one being tried,as a party, witness, juror, or other capacity.

2) Has ever been on the other side of a lawsuit involving one of the partiesto the present case.

3) Is related by blood or marriage to one of the parties, the victim of a crime,or (sometimes) one of the attorneys.

4) Has formed or expressed an opinion as to the guilt or innocence of thedefendant, or as to liability or damages in a civil case.

5) As a matter of conscience, would be unable to render an impartial verdicton the facts in accordance with law.

6) For any other reason, is unable to render a fair and impartial verdict.

If questioning reveals that a prospective juror falls into one of the first fivecategories, often called “imputed bias,” the judge must excuse the juror with-out further inquiry. Once a prospective juror says that he or she is theplaintiff’s cousin or has already formed an opinion as to the proper outcomeof the case, the questioning should stop. It does not matter whether the jurorlikes the cousin or believes the relationship will interfere with the juror’sability to fair and impartial. Nor does it matter whether a juror’s opinion onthe merits is that the defendant is probably guilty or probably innocent, orwhether the juror can put aside that opinion and decide the case on its merits.The grounds for removing the juror are fully established once the juror fallsinto one of the statutory categories, and further questioning is irrelevant.

It is the sixth category that is the heart and soul of voir dire questioning— is there any other reason why the juror cannot be fair and impartial? Itis under this rule that attorneys question jurors about their feelings abouta host of factors involved in the case that might induce emotional reactionsin some jurors: race, ethnicity, age, sexual orientation, lifestyles, S.U.V’s,women, law enforcement officers, chiropractors, banks, traffic laws, alcoholicbeverages, adultery, drug use, crime, the insanity defense, welfare, corpora-tions, McDonald’s, sexual harassment, gun ownership, global warming,unions, zoning laws, motorcycles, and on and on. But unlike for the first fivecategories, it is not enough that a juror admit he or she has one of these “other”biases. To be removed for cause, the evidence developed during the questioningof the juror must convince the judge that the juror could not put aside thatbias and be fair and impartial.

Attorneys will not always be able to develop the evidence necessary toconvince the judge that a prospective juror is sufficiently biased to warrantremoval for cause. Jurors may not be aware of their own biases, may minimizethem in questioning, and may deny that their biases will affect their actualdecision. For example, in Glover v. State, 4 jurors gave the following answersto questions about whether they had formed any opinions about the defen-dant’s guilt based on pretrial publicity:

[Juror Shoe] “I just formed my own opinion [that the defendant wasprobably guilty]. A witness could come on the stand and changeeverything. . . . My present mental state is that I would attempt to

4 455 S.W. 2d 670 (Ark. 1970).




follow what the court says about the evidence and the law and consideronly the evidence heard from the witness stand and the law given meby the court. But, in that connection, until I hear evidence from thewitness stand that gives me grounds to believe something which wouldcause me to change my ideas, I would still have those ideas. . .”

[Juror Boyd] “I formed some tentative opinions about the matter whichI presently entertain. While I . . . would be willing to set this opinionaside and try the case on the law and the evidence, until some evidenceis introduced to remove that opinion, I will still have it.”

[Juror Britewell] “I recall reading about the death of the decedent. Itis a little hard not to form an opinion [that the defendant was guilty].Regardless of the opinions I have formed and regardless of whetherwhat I may have read or heard is true, I would try it on the evidenceI hear in court to the best of my ability. I would set these opinionsaside.”

Under the prevailing standard for challenges for cause, as long as the jurorpromises in good faith to put aside any biases and decide the case on the factsand law, the juror need not be removed.5 That solution may not be satisfactoryto an attorney who does not believe the juror’s minimization of his or her ownprejudices. We therefore give each side a number of “peremptory” challenges,by which the attorneys can remove probably biased jurors that are not excusedby the judge.

Peremptory challenges (called “strikes” in some jurisdictions) are given toboth sides by statute. The number varies widely — from two or three inmisdemeanor and civil cases to twenty-six in capital murder trials.6 In gen-eral, the parties are free to exercise peremptory challenges in any mannerthey see fit. In Swain v. Alabama,7 the Supreme Court stated:

The essential nature of the peremptory challenge is that it is oneexercised without a reason stated, without inquiry and without beingsubject to the court’s control. While challenges for cause permitrejection of jurors on a narrowly specified, provable and legallycognizable basis of partiality, the peremptory permits rejection for areal or imagined partiality that is less easily designated or demonstra-ble. It is often exercised upon the sudden impressions and unaccount-able prejudices we are apt to conceive upon the bare looks and gesturesof another, upon a juror’s habits and associations, or upon groundsnormally thought to be irrelevant.

There is one important restriction on this freedom, however. No party —neither the prosecutor, a criminal defendant nor any civil party — mayexercise peremptory challenges in a way that discriminates against jurorsbased on their race, ethnicity, or gender. You may not challenge prospective

5 See Mu’Min v. Virginia, 500 U.S. 415 (1991). 6 See, e.g., Ind. Code § 34-36-3-3 (each party in a civil case has 3 peremptory challenges); § 35-

37-1-3 (in capital cases, each side has 20 challenges; in A, B and C felonies, each side has 10;and in all other criminal cases, each side has 5)

7 380 U.S. 202 (1965).




jurors just because you do not like their racial or ethnic background. In Batsonv. Kentucky,8 the Supreme Court stated:

Purposeful racial discrimination in selection of the venire violates adefendant’s right to equal protection because it denies him the protec-tion that a trial by jury is supposed to secure. “The very idea of a juryis a body . . . composed of the peers and equals of the person whoserights it is selected or summoned to determine.” Racial discriminationin selection of jurors harms not only the accused whose life or libertythey are summoned to try. . . . [B]y denying a person participationin jury service on account of his race, the State unconstitutionallydiscriminate[s] against the excluded juror. . . . Selection proceduresthat purposefully exclude black persons from juries undermine publicconfidence in the fairness of our system of justice. . . . Although aprosecutor ordinarily is entitled to exercise permitted peremptorychallenges “for any reason at all,” . . . the Equal Protection Clauseforbids the prosecutor to challenge potential jurors solely on accountof their race or on the assumption that black jurors as a group willbe unable impartially to consider the State’s case against a blackdefendant.

Under the Supreme Court’s guidelines, if the prosecutor challenges all ormost minority prospective jurors, and the defense objects, the prosecutor musthave a race-neutral explanation for each one, or the process must start overwith a new panel. The reason must be legitimately connected to the case andmay not be pretextual.

NOTES

1. Greater scope of inquiry required in death penalty cases. Deathpenalty cases are an exception to the rule that only minimal inquiry into biasis required. In Turner v. Murray, 476 U.S. 28 (1986), the Court held thatbecause the jury has such great discretion in setting the penalty in a capitalcase, and the standards are so subjective, there is a unique opportunity forracial prejudice to operate. Therefore, jurors should normally be questionedabout racial and ethnic prejudices toward the group to which the defendantbelongs.

2. Death qualifying the jury. One controversial application of the rule thatjurors must be willing to put aside their biases and decide cases on the meritsoccurs in death penalty cases. The Supreme Court has held jurors withscruples against the death penalty cannot be trusted to put aside that biasand decide the case on the merits, but must be removed from the jury. SeeWainwright v. Witt, 469 U.S. 412 (1985). Because a large percentage of thepopulation has scruples against the death penalty, the rule undermines the“fair cross-section” requirement and results in juries in capital cases composedof people who favor the death penalty, and are significantly conviction-prone.The matter is debated in the majority and dissenting opinions in Lockhartv. McCree, 476 U.S. 162 (1986).

8 476 U.S. 79 (1986).




3. Presumed, implied and inferred bias. Consider United States v. Torres,128 F.3d 38 (2nd Cir. 1997):

This case focuses primarily on the boundaries of the trial judge’sdiscretion to excuse prospective jurors for cause. It asks us to considerunder what circumstances a trial judge may either presume or inferbias on the part of a venireperson without explicitly asking whetherhe or she could apply the law impartially . . .. We today hold that sucha category of inerrable bias exists. Included within this category arecases, like the one before us, where facts disclosed at voir dire indicatethat a prospective juror has engaged in an activity closely akin to theconduct charged in the indictment against the defendant. In suchcircumstances, the trial court may, in its discretion, excuse the jurorfor cause.

Appellants Joaquin Rivera and Joseph T. Devery were convicted ofa conspiracy to launder the proceeds of a heroin trafficking scheme. . . .

Juror No. 7 was excused for cause pursuant to a motion by theprosecution, following her admission on voir dire that she herself hadat one time engaged in the “structuring” of cash transactions . . ..Devery’s counsel [objected]: “I don’t know if you have asked the fullquestions, whether or not any of that would affect her in this case,whether or not she would follow the law. . .” Judge Preska stated:“. . . I just can’t imagine she could be fair” [and] without furtherquestioning. . . granted the prosecution’s motion to excuse the juror.

A criminal defendant is guaranteed a trial “by an impartial jury.”. . . .But “impartiality is not a technical conception. It is a state of mind.For the ascertainment of this mental attitude of appropriate indiffer-ence, the Constitution lays down no particular tests and the procedureis not chained to any ancient and artificial formula.” . . . It followsthat “in each case a broad discretion and duty reside in the court tosee that the jury as finally selected is subject to no solid basis ofobjection on the score of impartiality. . . .” Accordingly, the presidingtrial judge has the authority and responsibility, either sua sponte orupon counsel’s motion, to dismiss prospective jurors for cause.

Traditionally, challenges for cause have been divided into twocategories: (1) those based on actual bias, and (2) those grounded inimplied bias. . . . Today we [recognize] a third category, that of“inerrable bias.”. . .

Actual bias [is established when] the juror admits partiality. [Forexample, Juror 38] had a friend who was killed two years earlier bya drug addict . . . stated: “If [drug dealers] were witnesses or some-thing like that, I think they’re the worst people on earth and I wouldn’tbelieve them no matter what they said.” When specifically askedwhether he could make a fair judgment as to the credibility of sucha witness, he responded: “I don’t think I would be able to do that. Idon’t think they have any credibility.”

Implied or presumed bias is “bias conclusively presumed as a matterof law” [when it] is attributed to a prospective juror regardless of




actual partiality [when a juror falls into one of the categories forautomatic challenge for cause established in the jurisdiction.]. Dis-qualification on the basis of implied bias is mandatory. Such automati-cally presumed bias deals mainly with jurors who are related to theparties or who were victims of the alleged crime itself. . . .

The excusal of Juror No. 7, thus, cannot be justified either by afinding of actual bias or by implied bias. Juror No. 7 was never askedduring voir dire whether, notwithstanding her prior experience ofstructuring a cash transaction, she could faithfully follow the judge’sinstructions and impartially apply the law. And, as discussed above,such an inquiry must be made before the judge can find actual bias.Moreover, the case of Juror No. 7 does not fall into the narrow categoryof presumed bias, which is reserved for “exceptional situations.” [We]decline to hold as a general matter that, where a juror has engagedin conduct similar to that of the defendant at trial, the trial judge mustpresume bias. . . .

But while the situations in which a trial judge must find impliedbias are strictly limited and must be truly “exceptional,” it does notfollow that the trial judge is without discretion to infer bias outsideof this narrow category of cases. On the contrary, there exist a fewcircumstances that involve no showing of actual bias, and that falloutside of the implied bias category, where a court may, nevertheless,properly decide to excuse a juror. We call this third category “inerrablebias.”. . . . Bias may be inferred when a juror discloses a fact thatbespeaks a risk of partiality sufficiently significant to warrant grant-ing the trial judge discretion to excuse the juror for cause, but not sogreat as to make mandatory a presumption of bias . . .. Just as thetrial court’s finding of actual bias must derive from voir dire question-ing, so the court is allowed to dismiss a juror on the ground of inerrablebias only after having received responses from the juror that permitan inference that the juror in question would not be able to decide thematter objectively. . . .

4. Peremptory challenges and the Batson rule. Batson prohibited the stateprosecutor from exercising peremptory challenges based on race. Hernandezv. New York, 500 U.S. 352 (1991), extended the rule to ethnicity, and J. E.B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994), extended it to gender. InPowers v. Ohio, 499 U.S. 400 (1991), the Court held that a litigant need notbe of the same race as the challenged juror to raise the issue. A whitedefendant may object to the prosecutor challenging minority jurors just as aminority defendant can. In Edmonson v. Leesville Concrete Co., 500 U.S. 614(1991), the Court extended Batson to private litigants in civil cases, and inGeorgia v. McCollum, 505 U.S. 42 (1992), the Court applied Batson to thechallenges exercised by criminal defendants. The Court held that raciallydiscriminatory peremptory challenges undermines public confidence in thefairness of the jury system regardless of who is engaging in it. See also J.Alexander Tanford, Racism in the Adversary System, 63 S. CAL. L. REV. 1015(1990).

5. What constitutes a legitimate non-racial justification under Batson?It is very difficult for the courts to police whether an attorney’s purported




non-racial justification for removing a juror is legitimate or pretextual. InHernandez v. New York, 500 U.S. 352 (1991), the prosecutor justified removingSpanish-speaking jurors because several witnesses would be Hispanic and aninterpreter used, and the jurors might not accept the interpreter’s version ofthe testimony. The Supreme Court split 4-2-3 on whether this was a legitimatejustification. Justice Kennedy’s plurality opinion stated that the issue isprimarily the intent of the prosecutor. Because the defense had not proveda specific discriminatory intent, then a plausible explanation like this willsuffice. Justice O’Connor’s concurring opinion stated that the trial judge haddiscretion to determine whether the prosecutor’s reasons were genuine.Justice Stevens dissented. Spanish language ability was obviously not race-neutral, so that he thought the prosecutor’s conduct violated Batson.

In United States v. Forbes, 816 F.2d 1006 (5th Cir. 1987), the prosecutorused three peremptory challenges against African-American jurors, justifyingone because she had two sons who had been in trouble with the law; anotheron the ground that he “sensed by her posture and demeanor that she washostile toward the government,” and declining to justify the third on theground that a single race-based challenge did not violate Batson. In drug casesagainst African-American defendants, prosecutors have justified their racialchallenges because jurors were young, unmarried, unemployed, poor, or comefrom poverty-stricken neighborhoods. United States v. Cartlidge, 808 F.2d1064 (5th Cir. 1987); United States v. Uwaezhoke, 995 F.2d 388 (3rd Cir. 1993);United States v. Bishop, 959 F.2d 820 (9th Cir. 1992). The courts generallyuphold these flimsy excuses. See Purkett v. Elem, 514 U.S. 765, 767 (1995)(reason may be implausible, silly or superstitious).

There are limits, however. One prosecutor hard pressed to come up witha race-neutral explanation said, “I have a P rule, I never accept anyone whoseoccupation begins with P. [The juror] is a pipeline operator.” The explanationwas not accepted. United States v. Romero-Reyna, 867 F.2d 834 (5th Cir. 1989).

6. The struck jury. A few states use a struck jury as an alternative to theperemptory challenge system. Under this procedure, an entire panel of jurorsis questioned, and then the attorneys alternately strike jurors until only therequisite number remain. There is considerable variation among the statesthat use a struck jury. It may be an available alternative to a common jury,or the exclusive method of selection. A small panel may be called from whichonly a few names can be struck, e.g., Va. Code § 8.01-359 (in routine civil caseseleven jurors are called and six struck), or the list may include the namesof all empaneled jurors. The Alabama statutes reads as follows:

§ 12-16-100. Drawing, selection and empaneling of juries in crimi-nal cases. In every criminal case the jury shall be drawn, selected andempaneled as follows: Upon the trial by jury in the circuit courts ofany person indicted for a misdemeanor, or felonies not punishedcapitally or upon appeals to the circuit courts from lower courts, thecourt shall require two lists of all the regular jurors empaneled forthe week who are competent to try the defendant to be made, and thedistrict attorney shall be required first to strike from the list the nameof one juror, and the defendant shall strike two, and they shall con-tinue to strike off names alternately until only 12 jurors remain on




the list and these 12 jurors thus selected shall be the jury chargedwith the trial of the case.

7. Alternate Jurors. It is common in most trials to select one or morealternate jurors who can serve if a regular juror becomes ill. Alternate jurorsare selected through the same voir dire process, and are subject to the samequestioning and challenges.

§ 3.06 QUESTIONING PROCEDURES

The information upon which courts base their decisions to remove jurorsfor cause, and attorneys base their peremptory challenges, comes almostentirely9 from the voir dire questioning of the jury panel.

[A] WRITTEN QUESTIONNAIRES

Most courts ask jurors to fill out a preliminary questionnaire asking forbasic information about their names, ages, occupations, and experiences withcommon occurrences like crimes and automobile accidents likely to be thesubject of lawsuits.10 The questionnaires are sent to the prospective jurorsalong with the summons, and they are asked to fill it out and bring it withthem when they report for jury duty. The questionnaires are collected by thecommissioner, photocopied and distributed to the parties. This is the firstsource of information that the attorneys have about the prospective jurors.A typical questionnaire will contain some or all of the following questions:

QUESTIONING PROCEDURES

JUROR PERSONAL HISTORY QUESTIONNAIRE

In order to find out whether you are suitable for service in each case, youwill be questioned by the judge or attorneys. Certain questions are asked inmost cases, and to save time you are being required to fill out this question-naire so that those questions do not have to be asked in court. You canappreciate the time and money this questionnaire will save. You are requiredby the rules of the Court to answer the questions truthfully. Refusal to answer,or the giving of a false answer, subjects you to fine or imprisonment, or both,for contempt of court. As you answer the questions it will become obvious toyou why such questions must be asked.

1. Print name plainly: Sex: M F

(a) State any legal changes of name including maiden and previous marriednames.

2. Address:

3. Date of birth: Where were you born?

5. Marital status (check one): Single ( ); Married ( ); Divorced ( ); Separated ( ); Widow or Widower ( ).

9 In smaller communities, it is likely that the attorneys will know many of the prospectivejurors, and may base much of their decision on whom to challenge on that knowledge.

10 See Mich. R. Ct. 2.510.




6. Occupation:

7. Employer:

8. Prior business or professional experience or other employment:

9. Name of spouse:

10. Occupation of spouse:

11. Spouse employed by:

12. Ages and number of children at home:

13. Have you any defects in your hearing?

14. Have you any defects in your vision?

15. Is your general health good? Explain any health problems:

16. Are you, or have you ever been, an office-holder for any state, county, ormunicipality? (Specify)

17. Are you, or any member of your family, a law enforcement officer? (Specify)

18. Are you an employer, landlord, or tenant? (Specify)

19. Do you own property? Describe.

20. Have you ever studied law? (Explain):

21. Have you ever studied medicine or nursing? (Explain):

22. What is your level of education: high school college graduate school

23. Have you ever served as a juror? If yes, when?

What type of case?

24. Do you own a car? What kind?

25. Have you ever been in an accident? (Explain):

26. Were you injured?

27. Was anyone else injured? (Explain):

28. Has any member of your family, or a close friend ever been in an accident?If so, explain:

29. Are you a director of, own stock in, or work for any insurance companies?(if so, what companies?)

30. Were you ever an inmate in a state or county institution? (Explain):

31. Have you ever been convicted of a crime? If so, explain:

§ 3.06 QUESTIONING PROCEDURES 109



32. Have you ever been arrested and charged with any crime? (Explain):

33. If so, is that charge pending?

34. Have you ever been a party to any suit, either civil or criminal?

35. If so, state the nature and number of each suit and in what court:

I certify that I have answered the above questions fully and truthfully. Irealize that a false answer subjects me to the penalties for contempt of court.

Date Signature of Juror

NOTE

Standard versus customized questionnaires. Because jurors are sum-moned for a venire that may serve several different trials, customizedquestionnaires are impossible. Standardized forms must be supplemented byin-court questions about the specifics of the individual cases. However, in somehigh-publicity cases, such as litigation attempting to hold tobacco companiesliable for smokers’ deaths, in which a special venire is summoned just for thattrial, judges have departed from the standardized form and have distributeddetailed questionnaires to prospective jurors that have been tailored to fit theparticular case. ROBERT S. WARREN AND GAIL E. LEES, JURY SELECTION, IN

WINNING STRATEGIES AND TECHNIQUES FOR CIVIL LITIGATORS 41–42 (J. Lyonsed. 1992).

[B] IN-COURT QUESTIONING

Courts follow three different procedures for questioning prospective jurors.The traditional practice, still followed in some states, places responsibility forquestioning prospective jurors on the attorneys. By contrast, the federalpractice places responsibility on the judge, who conducts all or most of thequestioning. Attorneys’ participation is severely restricted. A compromise“cooperative” method is used in some jurisdictions, in which the judge asksgeneral questions, followed by supplemental questions from the attorneys.

Attorney-conducted voir dire used to be ubiquitous. In New York, the judgewas not even present during questioning unless requested by one of theparties.11 Although concerns about efficiency have eroded the popularity ofthis procedure, it is still common in state courts. In a few states the task ofquestioning jurors is allocated to the attorneys by statute,12 but in most

11 N.Y. Civ. Prac. Law § 4107 (McKinney 1992). 12 E.g., Conn. Gen. Stat. § 51-240: “In any civil action tried before a jury, either party shall

have the right to examine, personally or by his counsel, each juror outside the presence of otherprospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, ifany, in the subject matter of the action, or as to his relations with the parties thereto. . . . Theright of examination shall not be abridged by requiring questions to be put to any juror in writingand submitted in advance of the commencement of the action.”




states, the presiding judge has discretionary control over who asks thequestions, and the practice may vary widely even within the same jurisdic-tion.13 Often, the only way to find out if you are expected to conduct the entirevoir dire is to ask.

In the federal courts, the judge has discretion whether and to what extentto allow attorney participation in questioning.14 Most judges severely limitit, and many conduct the questioning entirely themselves. Attorney participa-tion is limited to the submission of written questions, which the judge mayask as written, may ask only after substantial editing, or may refuse to ask.Appellate courts have generally upheld the judge’s authority to conduct allor most of the questioning, as long as he or she does so adequately to insurean impartial jury.15

Probably the most common method of voir dire in state courts is a coopera-tive procedure in which the trial judge conducts a general examination andthen turns the questioning over to the attorneys. This is the method recom-mended by the American Bar Association’s Standards for the Administrationof Criminal Justice:

Standard 15-2.4: Interrogation of jurors should be conducted initiallyand primarily by the judge, but counsel for each side should have theopportunity, subject to reasonable time limits, to question jurorsdirectly, both individually and as a panel.

The trial judge also has considerable discretion in deciding how to questionjurors. One common procedure is to start by posing general questions to thepanel as a whole for easily detectable disqualifications, such as nonresidency,recent jury service, physical disability, exposure to pretrial publicity, and soforth. Then, jurors are called up in groups of four to twelve to sit in the jurybox.16 The voir dire continues with more specific questions posed to all jurorsin the box or to individuals. If a juror needs to be questioned about apotentially embarrassing matter, such as prior criminal record or experienceas a rape victim, the judge and attorneys may temporarily adjourn to thejudge’s chambers. Private questioning also may be used when it appears thatfurther public questioning could taint the panel. For example, if in responseto a general question, a prospective juror states that he or she has a reasonfor being biased against a party, it is within the discretion of the judge toremove that person from the hearing of the other jurors before inquiringfurther.17

13 See William Fortune, Voir Dire in Kentucky: An Empirical Study of Voir Dire in KentuckyCircuit Courts, 69 KY. L.J. 273, 297–98 (1981), reporting that in Kentucky, where the trial judgehas discretion, about twenty percent of judges give attorneys responsibility for the fullexamination.

14 See Fed. R. Civ. P. 47(a); Fed. R. Crim. P. 24(a). 15 E.g., United States v. Beckman, 222 F.3d 512, 518-19 (8th Cir. 2000). 16 See 705 Ill. Comp. Stat. 305/21 (jurors to be examined in panels of four); Minn. R. Crim.

P. 26.02(4) (jurors examined in groups equal to total number of jurors who will serve at trial).17 See United States v. Bear Runner, 502 F.2d 908 (8th Cir. 1979) (if individual prejudices are

likely, individual questions should be asked).

§ 3.06 QUESTIONING PROCEDURES 111



NOTE

Judicial supervision of attorney-conducted voir dire. Just becauseattorneys may be permitted in a particular case to conduct all or part of thequestioning does not mean they have unlimited freedom. Judges will oftenintervene and take control to cut off irrelevant or protracted questioning.David U. Strawn suggests several specific situations in which judges shouldintervene and stop attorney questioning:

1) Questions about a juror’s emotional response to legal concepts.

2) Redundant voir dire, especially questions about legal principlesalready explained.

3) Attempts to elicit commitments from jurors about facts, legalprinciples, or verdicts.

4) Questions concerning the appropriateness or morality of thelitigation.

5) Hypothetical questions about the kind of verdict a juror might re-turn if certain evidence were produced.

6) Attempts to curry favor with the jurors.

7) Questions likely to aggravate prejudice or racial bias.

Ending the Voir Dire Wars, JUDGES J. at 45 (Spring 1979).

§ 3.07 THE SCOPE OF QUESTIONING

[A] QUESTIONS ABOUT JUROR IMPARTIALITY

The law in most jurisdictions permits the attorneys to challenge for causeany juror who cannot be fair and impartial for any reason. It also gives theattorneys a number of peremptory challenges to allow them to remove jurorswho are probably biased. Thus, any questions that are legitimately intendedto probe for bias or sympathy that could affect the neutrality of a prospectivejuror should be permitted, subject to the rule that jurors usually need notanswer questions calculated primarily to humiliate or embarrass them.18 Theextent of the questions the judge will permit is largely a matter of discretion,19

and the potential list of relevant topics is endless. However, the followingsubjects are usually legitimate topics of inquiry:

● Whether any juror knows anything about the facts of the case,either from personal knowledge, exposure to pretrial publicity, orgossip, and has formed any tentative opinions based on it

● Whether any juror has a social relationship with a party, witnessor attorney, such as:

Friend

Neighbor

18 See, e.g., Abron v. State, 523 S.W.2d 405 (Tex. Crim. App. 1975). 19 See, e.g., Brannan v. State, 561 S.E.2d 414, 424 (Ga. 2002).




Relative by blood or marriage

Member of the same or competing organizations

Member of the same social clubs or service organizations

● Whether any juror has a business or professional relationship witha party, witness or attorney, such as:

Business associates, competitors, or in the same profes-sional field

Landlord or tenant

Stockholder

Debtor or creditor

Employer, employee or independent contractor

● Whether any juror has had similar experiences to those involvedin the present case, such as:

Accused of a similar crime or causing a similar accident

Victim of a similar crime or accident

Suffered similar injuries

A witness to a crime or accident

A juror in a similar case

● Whether any juror leads a life similar to one of the parties or mainwitnesses, such as:

Marital status

Has children of ages similar to a party

Military service

● Whether any juror has a feeling of antipathy toward a lifestyle ofa party, witness, or attorney is associated, such as:

Prostitution

Receiving welfare assistance

Alcohol or other drug use

Gun ownership

Home schooling

● Whether any juror has prejudices against a group to which a party,witness or attorney belongs, such as:

Corporations

Racial minorities

National origin or ethnicity

Gender or sexual orientation

Law enforcement

Labor unions

§ 3.07 THE SCOPE OF QUESTIONING 113



● Whether any juror has biases concerning social issues involved inthe case, such as:

The insanity defense

Alcohol consumption, especially drunk driving

Drug use

Crimes against children

Intrafamily torts

Sexual harassment

Medical malpractice and the “litigation crisis”

Environmental damage

Gun use or possession

Obscenity/pornography possession

Race relations

● Whether any juror’s family members or close friends fall into anyof these categories.

[B] QUESTIONS ABOUT THE LAW

Somewhat more controversial is the practice of asking jurors about theirwillingness to follow the law, especially unpopular laws. Such questionsshould be allowed, because a juror who cannot promise to decide the case onits merits must be removed for cause. Most judges allow such questions aslong as attorneys do not misstate or criticize the law, although a few seemto think they are improper.20 Indeed, in an era when many laws are politicizedand controversial, and jurors can be expected to have strong feelings on lawsranging from medical malpractice and punitive damages to the insanitydefense and the death penalty, it is inconceivable that an impartial jury canbe seated unless the lawyers are permitted to explore whether jurors harborany such biases. The inquiry cannot, however, turn into a test on jurors’knowledge of the law.21

[C] QUESTIONS TO ACQUIRE INFORMATION FOREXERCISING PEREMPTORY CHALLENGESUNRELATED TO BIAS

May attorneys question jurors on topics beyond those related to bias andprejudice? May they ask jurors for personal information that is not immedi-ately relevant to any person or issue involved in the case, such as whatmagazines a juror reads, the television programs watched, level of education,and so on? Some judges will allow this kind of questioning, at least to a limitedextent. Most courts at least pay lip service to the principle that a broad scopeof voir dire questioning is required to provide attorneys with an adequate basis

20 See, e.g., Fortune, supra note 13, at 313–15 (survey revealed that 70% of Kentucky trialjudges routinely permitted attorneys to question jurors about the law).

21 See James H. Gold, Voir Dire: Questioning Prospective Jurors on Their Willingness to Followthe Law, 60 IND. L. J. 163, 166–88 (1984).




for the intelligent exercise of peremptory challenges; otherwise, the right toperemptory challenges would be meaningless.22 Others will not allow thiskind of questioning beyond the basic demographic information provided in thejuror questionnaires.23 The scope of voir dire on issues such as these is amatter of judicial discretion.

[D] QUESTIONS USED TO BEGIN ADVOCACY

Trial lawyers often have suggested that the voir dire is the best time to beginthe process of persuasion, by indoctrinating jurors on a partisan view of thefacts and by ingratiating themselves and their clients with the jury. Thistechnique commonly involves a recitation of favorable facts and an explanationof how they lead to a particular verdict. The most frequent form is thehypothetical question:

Mr. Levenhagen, suppose the evidence showed that my client isdisabled for life and unable to work or even go to the bathroom byhimself. Could you return a verdict for $3,000,000 if that’s what youthought it would take to compensate him? Is there any reason thatyou would reduce that amount just because $3,000,000 sounds likea whole lot of money?

Courts are split on whether this form of questioning is proper. The extentto which it will be allowed is largely a matter of judicial discretion. It can beargued that if the juror admits he would be reluctant to award a multi-milliondollar verdict even if the evidence supported it, the juror could be challengedfor cause; therefore the question should be allowed. Some courts have adoptedthis view, and give attorneys a relatively free hand. 24 The majority position,however, is that hypothetical questions that ask a juror what verdict he orshe would give if certain facts were proved, or whether the juror could arriveat a specific verdict by applying the anticipated instructions to an assumedset of facts, are improper attempt at indoctrination.25

The other common indoctrination question is one that combines an argu-ment with a question. These questions are either rhetorical or merely askabout (and emphasize) some universal aspect of human experience. Forexample, a defense attorney in a criminal case who intends to assert amistaken identity defense might ask:

Ms. Oldham, have you ever greeted a stranger because they lookedlike someone you knew, or has a stranger ever greeted you becauseof mistaken identity?

Because it is obvious that most people have had this kind of experience,the question is unlikely to elicit any new information about the jurors that

22 E.g., Mu’Min v. Virginia, 500 U.S. 415, 431 (1991); State v. Greer, 635 N.W.2d 82, 87 (Minn.2001).

23 See State v. Godley, 535 S.E.2d 566, 572 (N.C. App. 2000) (court did not allow questions abouthobbies, TV programs and books).

24 E.g., State v. Moeller, 616 N.W.2d 424, 441-42 (S.D. 2000). 25 E.g. Standefer v. State, 59 S.W.3d 177, 179 (Tex. App. 2001) (if evidence showed a person

had a crack pipe in his pocket with cocaine residue, is there anyone who could not convict?).




would be relevant to the intelligent exercise of challenges. The question ismerely argumentative and not proper.26

NOTES

1. Scope of voir dire. The leading case on the scope of voir dire is Peoplev. Williams, 628 P.2d 869 (Cal. 1981), reviewing whether a defendant assert-ing self-defense should have been allowed to ask questions about jurors’attitudes toward a person using deadly force in self-defense. The court held:

Our courts have become increasingly aware that bias often deceivesits host by distorting his view not only of the world around him, butalso of himself. Hence although we must presume that a potentialjuror is responding in good faith when he asserts broadly that he canjudge the case impartially, further interrogation may reveal bias ofwhich he is unaware or which, because of his impaired objectivity, heunreasonably believes he can overcome. And although his protesta-tions of impartiality may immunize him from a challenge for cause(see Pen. Code, § 1076), they should not foreclose further reasonablequestioning that might expose bias on which prudent counsel wouldbase a peremptory challenge. For instance, although a juror hasasserted his willingness to presume defendant’s innocence, “carefulcounsel would exercise a peremptory challenge if a juror replied thathe could accept this proposition of law on an intellectual level but thatit troubled him viscerally because folk wisdom teaches that wherethere is smoke there must be fire.”. . .

Because the peremptory challenge is a critical safeguard of the rightto a fair trial before an impartial jury, questions directed at its intelli-gent exercise manifestly fall within the bounds of the “reasonableinquiry” to which counsel are entitled.

[W]e leave intact the considerable discretion of the trial court tocontain voir dire within reasonable limits. Under this standard, trialcourts need not and should not permit . . . inordinately extensive andunfocused questioning. . . . Nonetheless, “expedition should not be pur-sued at the cost of the quality of justice.” Although it is impossibleto dictate a priori the proper balance to be struck by the trial courtsin each case, we commend to them the guidance provided by the Dis-trict of Columbia Circuit, i.e., that counsel should at least be allowedto inquire into “matters concerning which either the local communityor the population at large is commonly known to harbor strong feelingsthat may stop short of presumptive bias in law yet significantly skewdeliberations in fact.” In addition, if a particular juror has given thecourt some reason to suspect he harbors such feelings, even thoughthe general population does not, further questioning would beappropriate.

We reaffirm that it is not “a function of the examination of prospec-tive jurors to educate the jury panel to the particular facts of the case,

26 See People v. Bowel, 488 N.E.2d 995 (Ill. 1986).




to compel the jurors to commit themselves to vote a particular way,to prejudice the jury for or against a particular party, to argue thecase, to indoctrinate the jury, or to instruct the jury in matters of law.”Therefore, a question may be excluded if it appears to be intendedsolely to accomplish such improper purpose. In addition, the courtneed allow only reasonable questions — although it cannot excludequestions proper in scope, it is free to require that they be phrasedin neutral, nonargumentative form. On the other hand, a questionfairly phrased and legitimately directed at obtaining knowledge forthe intelligent exercise of peremptory challenges may not be excludedmerely because of its additional tendency to indoctrinate or educatethe jury . . ..

2. Use of visual aids. Case law is sparse on whether you may use illustrativeexhibits, charts, or a chalkboard to aid your voir dire. In Etheridge v. State,903 S.W.2d 1, 8 (Tex. Crim. App. 1995), the court held that an attorney waspermitted to use a chart during voir dire to list issues and write out the namesof the victim and defendant. Cf. Bennett v. Commonwealth, 374 S.E.2d 303,317 (Va. 1988) (judge properly prevented attorney from showing jurorsphotographs of the victim); Finley v. State, 181 P.2d 849 (1947) (use of mugshot photographs to identify potential witness was improper).

3. Questions that disclose the existence of insurance. Because jurors canbe questioned about their interest in or attitudes about the parties, they alsoshould be subject to questions about their connections with or interest in theinsurance companies that ultimately will pay the damages. See, e.g., Seldinv. Babendir, 759 N.E.2d 28, 33-34 (Ill. App. 2001). Yet, some courts fear thatif disinterested jurors know the defendant is insured, they will award damagesbecause “it’s all going to be paid out of insurance anyway.” The cases varyconsiderably on the extent to which insurance can be disclosed on voir dire.In general terms, good faith inquiry is permitted to determine if jurors willbe influenced in their decisions by their interest in an insurance company.In some courts, the attorney must first make a prima facie showing that suchinquiry is justified (e.g., by a juror’s answering a general question about occu-pation by stating the juror works for Allstate). Questions designed merely toinject the issue of insurance are not permitted and may constitute reversibleerror. See Alan Calnan, The Admissibility of Insurance Questions During VoirDire: a Critical Survey of Federal Approaches and Proposals for Change, 44RUTGERS L. REV. 241 (1992). The matter is generally left to the discretion ofthe trial judge. See Buckalew v. McGoldrick, 908 S.W.2d 704, 707 (Mo. App.1995).

4. Asking about the litigation crisis. In Babcock v. Northwest MemorialHospital, 767 S.W.2d 705 (Tex. 1989), the court held that it was reversibleerror to refuse to allow the attorneys to question the panel about the alleged“liability crisis” in medical malpractice, and about whether they had seen orheard any of the insurance industry advertisements on malpractice verdicts.Cf. Burke v. Schaffner, 683 N.E.2d 861, 864 (Ohio App. 1996) (reasonable torestrict topic to a few general questions).

5. Inquiring about religious beliefs. Inquiring about a juror’s religiousbelief usually is improper unless a religious issue is involved in the case. Bader




v. State, 40 S.W.3d 738, 741-42 (Ark. 2001); Smith v. State, 797 So. 2d 503,518 (Ala. Crim. App. 2000).

6. What happens if jurors lie or withhold information? Usually nothing.In McDonough Power Equip. Co. v. Greenwood, 464 U.S. 548 (1984), the jurorswere asked whether any of them or a member of their immediate family hadsustained any severe injury that resulted in any disability or prolonged painand suffering. Juror Payton did not respond, even though his son had beeninjured in the explosion of a truck tire. The Supreme Court held that becausejurors come from varying backgrounds and are not experts in the Englishlanguage, it is reasonable to expect that jurors will misunderstand questionsand give erroneous answers. Therefore, to obtain a new trial in such a situa-tion, a party must first demonstrate bad faith by the juror — an intentionalfailure to answer honestly a material question — and then further show thata correct response would have provided a valid basis for a challenge for cause.

In Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998), a juror in a criminal casewas asked if any member of her family had ever been the victim of a crime.She answered “no,” although her brother had been shot and killed six yearsearlier. When questioned by the trial judge, the juror said she had answered“no” because she thought the shooting was an accident, not a crime. Thestatement and explanation were obvious lies, because her brother had beenpistol-whipped four times and then shot in the back of the head. The courtheld that although “we must be tolerant, as jurors may forget incidents longburied in their minds, misunderstand a question or bend the truth a bit toavoid embarrassment,” it was inconceivable that this could have been aninnocent mistake. The juror had also lied when she denied ever having beenthe victim of a crime. A post-trial examination revealed that she had beenthe victim of an attempted rape when a teenager, several burglaries, and cartheft. The court ordered a new trial.

§ 3.08 CONDUCTING THE VOIR DIRE

[A] PURPOSES OF QUESTIONING

For most experienced attorneys, identifying and removing biased jurors istheir primary purpose, but it is not their only purpose. They follow the fourI’s:

● Information. Elicit information from prospective jurors uponwhich to base challenges.

● Indoctrination. Begin the process of presenting your case byfocusing on the main points that make up the core of your theory.Try to work your main points into your questions. Obtain commit-ments from the jurors that they will follow the primary juryinstructions that favor your side.27

● Inoculation. In litigation as in medicine, exposing jurors to a weakform of a virus may innoculate them against the more virulent form

27 Public commitments increase the likelihood that the promised behavior will be enacted. SeeJEFFREY T. FREDERICK, THE PSYCHOLOGY OF THE AMERICAN JURY 146–48 (1987).




that will be offered by your opponent. Talk to the jurors about yourweaknesses and obtain their commitment that they will not givethem undue weight. For example, if your client has a felonyconviction that is going to become known to the jury when hetestifies, bring it out during voir dire. The evidence may seem lesscatastrophic if the jurors have been expecting it all along.28

● Ingratiation. Introduce yourself and your client to the jury in afavorable way; at least try not to alienate the panel. Integral to thisprocess is personalizing your client, and building rapport betweenyourself and the jury.

[B] PREPARING QUESTIONS

As with all aspects of the trial process, the key to a successful voir dire ispreparation. The questions you ask should be planned in advance. If you trustto the luck of spontaneity, you may leave things out or state them poorly. Thisconcept may appear counterintuitive — how can you plan your questions whenyou have no idea who you will be questioning or what prejudices they willhave that need to be explored? Obviously, you will not be able to plan all ofthe follow-up questions you will ask a prospective juror whom you suspectof bias. Nevertheless, you can and should plan the areas of potential bias youwant to explore, and the specific questions intended to indoctrinate the jurorsor to ingratiate yourself with them. As a guide to that preparation, thefollowing sections provide suggestions about the kinds of topics and questionsthat you may want to include.

[1] Introductory Remarks to the Panel

When a jury panel is brought into the courtroom, its members have no ideawhat the case is about, and many will be totally unfamiliar with the customaryrules and procedures of a trial. Thus, it has become standard practice in mostcourts to begin the voir dire with some kind of introduction to the case, theparties and attorneys, and the basic ground rules for conducting fair trials.In most jurisdictions, the judge will give this introduction. Some of theinformation may be contained in a juror handbook distributed in the jury roomat the beginning of the week. In such cases it is unnecessary (and probablyunwise) for you to go over the same ground again. However, you cannot besure that the court will in fact cover all the preliminary matters you thinkare important, so you muse be prepared to go over some basic preliminaryinformation.

The first part of the preliminary statement usually consists of an introduc-tion to the nature of the controversy. Whoever goes first — the judge or theplaintiff — should introduce the parties and attorneys and explain fairly whatthe case is about. For example:

28 David Crump, Attorneys’ Goals and Tactics in Voir Dire Examinations, 43 TEXAS B. J. 244(1980). Experiments by psychologists seem to verify this assertion. See, e.g., William J. McGuire,Inducing Resistance to Persuasion: Some Contemporary Approaches, in ADVANCES IN EXPERIMEN-

TAL SOCIAL PSYCHOLOGY 192 (L. Berkowitz ed. 1964).

§ 3.08 CONDUCTING THE VOIR DIRE 119



I’m Ileana Rodriguez, the assistant district attorney, and this [point-ing] is Jeff Simnick, the defense attorney. We are the lawyers whowill be presenting the case to you. This is a criminal case in whichEd Malavenda is accused of armed robbery. He is charged withstealing Christine McGuigan’s purse and car at gunpoint. He claimsthis is a case of mistaken identity.

Defense counsel will not need to repeat the introduction unless the plaintiffgave too partisan a summary or neglected to introduce the defendant, or ifthe nature of the defense still needs to be explained. Some attorneys alsointroduce important witnesses in their preliminary statements, while othersprefer to wait until they question jurors about their associations with thosewitnesses.

There is disagreement about whether your initial fact statement should beneutral or subtly slanted in your own favor. Some lawyers favor summarizingthe controversy in such a way that it sounds like you are entitled to a favorableverdict, arguing this is a chance to start “selling” your case. Others cautionagainst trying to slant the statement toward your own version. They pointout that jurors must first understand the case before they can begin to takesides, and that they will be wary of “sharp” lawyers at the beginning. If youexaggerate the facts in the beginning, and your opponent points this out tothe jury, your credibility may be so far compromised that you have doneirreparable harm to your case. The latter view is supported by experimentswhich show that when an audience knows there are two sides, greaterpersuasion is accomplished by presenting both sides of the controversy thana partisan view.29 Any shading of the case in your favor must therefore besubtle. For example, the prosecutor in our example could slightly modify herintroduction as follows:

I’m Ileana Rodriguez, the assistant district attorney, and this [point-ing] is the defense attorney. We are the lawyers who will be presentingthe case to you. This is a criminal case in which Ed Malavenda isaccused of “carjacking” — stealing Christine McGuigan’s purse andcar at gunpoint. The defendant may try to claim mistaken identity.

You might want to include two other preliminary matters to prevent thejurors from misunderstanding your apparent attitude toward them. Manyexperienced lawyers explain their reasons for asking questions that pry intothe private lives of the jurors. They tell the panel that they need to searchfor the kinds of biases and personal feelings that interfere with completeimpartiality. Otherwise, the jurors might resent the attorneys for forcing themto discuss private emotions and events in public. Second, it is probably a goodidea for someone at the start to explain that socializing is not permitted.Lawyers cannot be allowed to talk to the jurors outside the courtroom. Youwill see the jurors in the hallways and the elevator, and you do not want themto think you are ignoring them when you do not respond to their greeting,“Well, how’s it going?”

29 Robert Lawson, Relative Effectiveness of One-Sided and Two-Sided Communications inCourtroom Persuasion, 82 J. GEN. PSYCHOLOGY 3 (1970).




[2] Areas of Inquiry

The precise areas of inquiry you choose to cover in a particular caseobviously will depend on the nature of that case. No cookbook recipe can beprovided that lists questions that should be covered every time. It is generallyagreed that if it is not already in the questionnaire, you should elicit somebasic demographic information on the jurors, such as:

● Occupation of juror and juror’s family

● Juror’s residence

● Juror’s marital and family status

● Whether the juror belongs to or assists any local, state or nationalcivic and special interest organizations, e.g., Boy Scouts, ACLU,National Rifle Association.

However, it is generally inadvisable to probe into jurors’ private lives beyondthese matters, e.g., religious, social and political affiliations, unless you havea specific reason for doing so. It may make the jurors uncomfortable, and theymay resent you for doing so.

In addition, there is general agreement that you should ask questions thatprobe for biases and subtle attitudes on the part of jurors toward specificaspects of your case that could cause them to favor one side or the other. Thesequestions seek to link jurors’ experiences to the issues that will arise in yourcase. For example, both sides in a criminal case will want to ask the jurorswhat kinds of interactions they have had with the police. General consensusfavors probing in four areas:

● The applicable rules of law governing claims, defenses, and burdensof proof

● Weaknesses in your case

● Who your client is and who the major witnesses are

● Juror familiarity with the main facts of the event being litigated,either personal or from pretrial publicity

[a] Questions About the Law

It is no secret that the public may have strong emotional feelings for oragainst legal doctrine. Issues such as abortion, government-sponsored Christ-mas displays, sexual harassment, the death penalty, and the insanity defenseare obvious examples. More subtle attitudes may affect jurors’ views concern-ing whether driving in excess of the speed limit is negligence, whether dam-ages should be awarded for pain and suffering, or whether possession of anillegal handgun is a crime or a necessity.

Therefore, all practitioners agree that you must probe the jurors forpotential biases for and against the important legal issue in your case, at leastthose that have any chance of being controversial. It is common for lawyersto ask about legal principles as follows:

Will you be able to follow an instruction that provides that the statemust prove the defendant’s guilt beyond a reasonable doubt?




Other forms have also been suggested:

Are you in sympathy with the rule of law that requires you to accordthis defendant the benefit of reasonable doubt; you would not find himguilty of anything unless it were proved to you that he was guiltybeyond a reasonable doubt and to a moral certainty, would you?

Do you believe in the rule of law that the defendant is presumed tobe innocent until the state has proved him guilty beyond a reasonabledoubt and to a moral certainty?30

But you should bear in mind that your primary mission in voir dire is tofind out what the jurors think. Leading questions like these that tell the jurorsthe “correct” answer will have the effect of making it more difficult to findout the jurors’ true feelings. Jurors will tend to give “socially acceptable”answers in public.31 If you expect to gain any useful information, considera question along these lines:

This is a criminal case, in which the defendant will assert an insanitydefense. It’s obvious that a lot of people have strong feelings aboutit — some people feel that a person should not be put in jail if theyare mentally ill, but should be sent to a hospital; others feel that theinsanity defense is a loophole that allows criminals to go free. Do youhave any feelings one way or the other about the insanity defense?

Some attorneys go beyond this, and ask about uncontroversial laws. Forexample, a prosecutor may ask whether any of the jurors have any feelingsabout laws criminalizing child molesting, despite the fact that it is absurd tothink that there are going to be several people on the jury who will be stronglyopposed to making child molesting a crime. However, the better tactic isprobably to skip this kind of indoctrination. It is not necessary to proselytizeto the converted. The jury may become bored or even irritated at this pointlessquestioning. They know that the prosecutor is not really going to root out anest of jurors who advocate lenient child molesting laws.

If you intend to mention any rules of law during voir dire, you must becareful to state them briefly and accurately. Any misstatement of law willbring a quick rebuke from the judge — not a good way to make a firstimpression on the jury.

[b] Factual Weaknesses

Just as jurors may have strong feelings about certain controversial laws,they may have biases and negative attitudes about factual aspects of yourcase. If you represent a child molester or are seeking punitive damages againstthe local police department, you want to get the issue out in the open earlyand talk to the jury about it. It is far better to find out bad news (e.g., thateveryone hates your client) early when you can still minimize its impact byremoving the worst potential jurors, than to pretend that the weakness doesnot exist. The jury will find out the negative information eventually anyway.Consider a question such as this:

30 MELVIN BELLI, MODERN TRIALS 797 (1954). 31 See J. FREDERICK, supra note 27, at 122–23.




My client will take the stand and admit to you that ten years ago hemolested a 12-year girl. Since then he has had extensive counseling,and will testify that the sickness has been kept under control. Somepeople think that this kind of problem can never be cured, while othersthink that it can be controlled with therapy and will-power. What doyou think about this?

The dangers in criminal cases are fairly obvious. Criminal lawyers oftenask about:

● The need to rely on criminals, accomplices, informants and co-defendants as witnesses.

● Prior criminal record of the defendant or prosecuting witness.

● The defendant not testifying (only the defendant may raise thisissue).

● Sympathetic impact of the victim, defendant, or their families.

● Exposure to extensive or lurid pretrial publicity.

● Attitudes favorable or unfavorable toward the police and other lawenforcement personnel.

Civil cases have their own controversial aspects. Lawyers may want toquestion jurors about their feelings with respect to:

● Large verdict requests, especially if they include pain and sufferingdamages.

● Punitive damages.

● Beliefs about the so-called litigation explosion and whether jurorsthink many claims are unfounded, especially in medical malpracticecases.

● Sympathetic plaintiffs (or, rarely, defendants), especially those whohave been horribly injured.

● Prior accidents; either plaintiff’s involvement in prior accidents, orthe fact that other accidents happened that involved the defendantor its products.

● The presence of celebrities in the case — as parties, witnesses orattorneys (suppose John Mellencamp were appearing as a witnessin a copyright case).

[c] The People Involved in the Case

Beyond the predictable areas where some aspect of your case is an obviousweakness likely to provoke hostile reactions by jurors, lie a range of issueswhere you might find such an emotional reaction. Suppose one of your majorwitnesses is a retired cook who worked for the last fifteen years at the localhigh school cafeteria. Okay, the food was always lousy, but there is reallynothing about the juror’s occupation likely to provoke any particular emotionalreaction in the jurors. You do not have to ask questions about whether theprospective jurors disliked the cafeteria cooks.




Nevertheless, there may be antagonism between one particular juror andthis person that is uniquely related to an individual juror’s experiences. Onejuror may know your witness — from school, the neighborhood, or church —and dislike her for some personal reason. It could be an incident five yearsago when the juror’s son was wrongly accused of stealing food from thecafeteria, a simmering property line dispute, or resentment over your wit-ness’s changing the date of the church picnic.

To probe into these areas, you obviously must tell the jurors who your clientand witnesses will be, and ask if they know any of them. However, you proba-bly need to give the jurors some context. Attorneys suggest that you describemajor demographic characteristics of your client and any particularly impor-tant witnesses, and then ask if any jurors have encountered them in the courseof those activities. For example:

My client, Suzanne Katt, is active in the First Methodist Church ofBayshore, and is an adult leader in the Girl Scouts. Do any of you knowher in connection with either of these activities?

Our primary medical witness will be Dr. Marissa Ford, who haspracticed internal medicine here in town for twenty years. Have anyof you, or any members of your families, ever been patients of hers?

This technique has the advantage of allowing you to mention favorable traitsof your client and witnesses that will enhance their credibility.

Do not forget that jurors may not only harbor dislike for your witnesses,they may be especially fond of the opposing party. It is a good idea to gothrough a similar set of questions concerning jurors’ encounters with andknowledge of the adverse party and any of his or her major witnesses. Thistime, of course, you might mention a couple of the negative aspects of theopposition’s witnesses. For example:

The primary defense witness will be Pat Schrems. Mr. Schrems soldused cars at a place called “Honest Abe’s Used Cars” a few years agountil he was fired. Did any of you ever buy a car from him, or knowhim in any other way?

[d] The Main Facts of the Case

The jurors may not know your primary medical witness, Dr. Ford, but mayhave received treatment for an injury similar to your client’s from the doctordown the street. Thus, you should probe for juror’s knowledge and opinionson the very subjects that form the heart of your case. It is not important howrealistic it is that a juror might have prejudices — you are seeking the unlikelyprejudice (and pursuing your goal to indoctrinate jurors on the important factsof your case as well). Consider asking about the following topics:

● Do jurors have any personal knowledge of the facts? It is extremelyrare that you will find a previously undiscovered eyewitness, butyou might find jurors who are familiar with the scene of a crime.Asking these questions allow you to introduce the jury to the basicoutlines of your case.




● Have jurors heard or read anything about the facts? Even in casesthat attracted no media publicity, there was probably a short articleon the event in the paper, or jurors may have heard friends or familytalk about the case. There is a danger in asking these questions,of course, that a prospective juror will have heard somethinghorrible about your client, and will promptly inform the other jurorsabout it, so you must be circumspect.

● Have jurors formed any tentative opinions about the case? This isthe standard follow-up question if jurors have any knowledge of thecase or have heard anything about it.

● Do jurors have any similar experiences? Have they, or members oftheir families, been involved in a similar controversy? Asking thiskind of question allows you to introduce the jury to more facts aboutyour case. For example, in a personal injury case, jurors maypreviously have been involved in a similar accident, either as aparty or an eyewitness. Describe the plight of your own client, andask if anyone has ever experienced anything similar.

● Do jurors have any relevant expertise? Jurors or members of theirfamilies may have experience in a special field of work or learningthat may be involved in your case. For example, in a products liabil-ity case involving a drill press, you might want to ask if any jurorworks with a similar type of machinery.

Which facts are important enough to spend time on? You should ask aboutthe facts that are important to your theory of the case, where the jurors’feelings would make a difference. If you have done a thorough job preparinga theory of the case, then you already have identified the key disputes andthe major facts upon which your case will rest. The heart of your trial strategyis to keep the jury focused on these key points throughout the trial, not lettingthem become distracted by side issues. Your voir dire should reflect this strat-egy as well, sticking to the main points.

[3] The Final Question

As with any other stage of the trial, the end of voir dire should be plannedcarefully. As a general rule, you will want to take advantage of the recencyeffect, and use the end of your voir dire to emphasize one of the importantaspects of your case. For example, a criminal defense attorney might end withthis question:

All of you, of course, understand that the law places the burden ofproof entirely on the prosecution to prove the defendant guilty beyonda reasonable doubt. Will any of you have any difficulty holding theState to this heavy burden?

Some attorneys, however, suggest that the end of your voir dire should leavethe jury with good feelings about your integrity, and should communicate yourconfidence in the jurors, suggesting that it is too early to begin arguing. Astandard final question along these lines is directed to the entire panel, andsounds something like this:




ATTORNEY: Finally, based on everything you have heard so far, canany of you think of any reason why you could not be fair andimpartial to both sides?

VARIOUS JURORS: No.

ATTORNEY: Neither can I. I have no challenges for cause, you honor.

The final moments can also be used to soothe hurt feelings by asking ifanything done or said has irritated the jury, and asking the jury not to holdit against your client.

The other attorneys in my office tell me I can sometimes sound arrogantand make people mad. Has anything that I have done this past hourmade you angry with me?

If I have said or done anything that irritated you, or if I inadvertentlydo something later in the trial, will you promise not to punish my clientfor it?

NOTES

1. Is there any point in asking jurors whether they are biased? Imagineyou are a lawyer representing an African-American charged with a crime ina white suburb like Lake Forest, Illinois. Is there any point in askingprospective jurors whether they have any biases against black people? Itseems highly unlikely that anyone will admit publicly to being a bigot. Forthat reason, most attorneys recommend an indirect approach to the subjectof bias, suggesting questions along these lines:

Q: Did you have any contact with black people in the military?

Q: Do any African-Americans live on your block or go to your children’sschool?

Q: What do you think about affirmative action and the civil rightslaws?

Q: Do you know any interracial married couples? What do you thinkof it? Do you think their children will face social problems?

Q: You previously stated you enjoyed playing bridge and participatedin a duplicate bridge club. Are there any minorities who regularlyplay with that bridge club?

2. Making the most of judge-conducted voir dire. When voir dire ishandled solely by the judge, lawyers often appear unwilling to move foradditional attorney-conducted questioning. It may seem pointless and theymay be afraid they will antagonize the judge. There seems to be a tendencyto defer voir dire completely to the trial judge, even though a judge’s question-ing rarely is as probing as an attorney’s would be. The attorneys on theNATIONAL JURY PROJECT, IN JURYWORK: SYSTEMATIC TECHNIQUES § 2.12 (2ded. 2001) criticize this deference, and offer some suggestions on how your inputcan maximize judge-conducted voir dire There are three things you can dobefore trial:

● If you have reasons for believing judge-conducted voir dire will beinadequate, you should try to persuade the judge either to




personally conduct an expanded voir dire or to allow you to do so.Even if your motion to participate in voir dire is denied, the judgemay expand his or her questioning in the areas you requested.

● To facilitate this process, you should submit a list of twenty to thirtyclearly relevant questions you would like asked. You must beprepared to defend each question, explaining why it is likely toreveal juror bias.

● Prepare possible follow-up questions in advance which can besubmitted to the judge at the close of his or her voir dire. Essen-tially, this means preparing questions as if you were going to askthem yourself, noting follow-up questions you would have asked asthe voir dire progresses, and submitting to the judge those questionsthat were not covered.

In addition, you can have an effect on the questioning itself by cautious inter-ference in the judge’s voir dire. If a juror appears hesitant in his or herresponse to a question, or otherwise indicates he or she might not haveunderstood a question fully, you can ask for clarification. You might tell thecourt you found the question confusing and wonder if the juror did also, orthat you did not understand the answer and wonder if the juror could explainit. If a juror acts like he or she would like to amplify an answer, or if the judgecuts off a juror’s explanation, you can try interrupting and ask the judge togive the juror an opportunity to expand on his or her answer. Finally, youoccasionally can request the court to ask a particular juror some follow-upquestion while looking at the juror — a tactic that sometimes will result inthe juror’s answering your question spontaneously. There is a danger, ofcourse, that these tactics will anger the judge.

3. Sources of sample questions. Many books on trial practice include longlists of sample questions. See ANN FAGAN GINGER, JURY SELECTION IN CIVIL

AND CRIMINAL TRIALS, vol. 1: 509–751 (2d ed. 1984); JAMES J. GOBERT &WALTER E. JORDAN, JURY SELECTION 352–443 (2d ed. 1990); STARR LITIG.

SERV., JURY SELECTION: SAMPLE VOIR DIRE QUESTIONS (2000) WARD WAGNER,ART OF ADVOCACY — JURY SELECTION (2001).

4. Should you write out your questions? Yes. Although you often will beunable to predict what follow-up questions will be necessary and thereforecannot write them out in advance, you will be able to plan most of your voirdire. Consider Herald Fahringer, ln the Valley of the Blind: A Primer on JurySelection in a Criminal Case, 43 LAW & CONTEMP. PROBS. 116, 126 (1980):

Unless counsel is endowed with an infallible memory, the list ofquestions to be asked of prospective jurors must be outlined on a legalpad so that those topics can be reviewed periodically. Failure to askone important question, such as, “Do you know any police officers?”can be ruinous.

See also FRED LANE, LANE’S GOLDSTEIN TRIAL TECHNIQUE § 9.11 (3d ed. 1984)(experienced lawyers require only one-word outlines, inexperienced attorneysshould write questions out verbatim).




[C] CONDUCTING THE VOIR DIRE

Gathering reliable information from prospective jurors about themselves isnot as easy as it may appear. It is not simply a process of asking questionsand listening to the answers. Jurors may be unaware that they hold biases.They may be reluctant to disclose personal or embarrassing information inpublic.32 Jurors have a tendency to conform — to give socially acceptableanswers, even if their true opinions are different — when under the anxietyof public voir dire.33 The major problem may be simply that prospective jurorslie.34 They hide their prejudices from the attorneys, deny that they have hadsimilar experiences, and even may deliberately try to get on a jury in orderto put their prejudices into effect. This is not hard to understand. If a closefriend of a criminal defendant, convinced of his innocence, were called for hisjury duty, the friend undoubtedly would feel a strong desire to sit on that juryto insure that no miscarriage of justice occurred. If you are unable to reachany of this hidden information, you may not have enough data on which tomake intelligent challenges. The suggestions in this section should helpimprove the reliability and detail of the information gathered.

[1] Form of Questions

If you want to gather reliable information from prospective jurors aboutthemselves, it is axiomatic that you must get them to talk as much as possible.The way you ask your questions plays a significant role.

Questions addressed to the entire panel are least likely to elicit meaningfulresponses. Social psychologists point out that the pressure for group cohesive-ness and conformity militate against honest self-disclosure to such questionsas, “Do any of you have any preconceived opinions about the defendant’sguilt?” The likelihood of reliable information is further reduced if the lawyerprefaces the question with some remark such as “You know that the defendantis presumed innocent.” Therefore, most lawyers caution against asking groupquestions, at least on the topics on which you genuinely want information.Instead, questions should be directed to individuals. If you ask a question faceto face, a juror is less likely to take refuge in group silence, but is obligatedto give some kind of answer. The truth is usually easier to speak than a lie,so you will probably even get relatively reliable answers.

However, asking the same routine question of all jurors individually canbe extremely boring. Two techniques may help alleviate this problem. Oneis to prepare a variety of questions that seek the same kind of information.There is no reason why you must adhere to identical questions for all jurors.

32 See Dwan V. Kerig, Perceptions from a Jury Box, 54 CAL. ST. B.J. 306, 307 (1979) (self-reportof juror); J. FREDERICK, supra note 27, at 117–18.

33 See, e.g, Robert Helmreich and Barry Collings, Situational Determinants of AffiliativePreference Under Stress, 6 J. PERSONALITY & SOCIAL PSYCHOLOGY 79 (1967); Paul McGhee andRichard Teevan, Conformity Behavior and Need for Affiliation, 72 J. SOCIAL PSYCHOLOGY 117(1967); Irving Sarnoff and Philip Zimbardo, Anxiety, Fear, and Social Affiliation, 62 J. ABNORMAL

& SOCIAL PSYCHOLOGY 356 (1961). 34 Studies show that from seven percent to as many as fifty percent of all jurors fail to give

honest responses during voir dire. See Dale Broeder, Voir Dire Examinations: An Empirical Study,38 S. CAL. L. REV. 503, 510–14 (1965).




If you have alternatives, you can switch when one gets stale. The other tacticis to ask the question of one juror, and then to ask others if they agree ordisagree. Such questioning might proceed like this:

Q: Mr. Fogel, did you read anything about this case in the papers?

A: Yes, I think I remember reading that a little girl had been killedin an accident.

Q: Do you remember any of the details?

A: Yes, a truck hit a car.

Q: Have you tentatively decided whether anyone is at fault based onwhat you have read?

A: No, I don’t think so.

Q: Do you remember your reaction on reading about it?

A: Yeah, I thought it was tragic that a little girl was killed.

Q: Did that make you think it was the truck driver’s fault?

A: No.

Q: Who else might have read about this accident? Ms. Rosen?

A: Yes, I remember something about it in the paper.

Q: What was your reaction?

A: It was terrible that a child was killed. I have children of my own.

Q: Did you think it might be the truck driver’s fault?

A: Sure, but it was more like I wondered whose fault it was.

Q: It might have been the child’s mother who was at fault?

A: Sure. That’s terrible to think of, but she might have been distractedor something.

Q: Mr. Wildermuth, do you agree?

A: Yes. You can’t tell who was at fault by reading the paper.

Q: Mr. Cox, do you agree? [And so forth.]

Getting a juror to divulge information is similar to interviewing a prospec-tive witness, and similar tactics often are appropriate. It may be helpful foryou to review the materials in Chapter 2 on interviewing technique. Simple,open-ended questions that ask for explanations rather than a yes or no willelicit more accurate information. Asking broad, neutral questions, and follow-ing up with increasingly narrow probes will often prove effective. All yourquestions should be simple and straightforward, using ordinary words, andomitting convoluted, qualifying phrases and legal terminology.

[2] Keeping Track of Answers

The information you elicit from the jury will be for naught if you cannotremember which juror gave which answers when the time comes to exercisechallenges. Unless you have a photographic memory, you will need some sys-tem of recording answers. Probably the most effective is to have an associate




take detailed notes at the counsel table. This frees you to engage in conversa-tion with the jurors undistracted by the need to take your own notes. If youmust take your own notes, consider using shorthand or working out a simplecode for recording information — it is faster than longhand, and has the addedadvantage of not being decipherable if accidentally seen by jurors or youropponent.35

One easy method is to use a chart that looks like a diagram of the jury box.See Figure 3. The name of each juror, and information about that person, canbe placed in the box corresponding to the juror’s seat.

Other attorneys prefer to use a more detailed form with spaces provided foranswers to the questions they know they are going to ask in advance. A simpleversion of this kind of form is illustrated in Figure 4.

Figure 3. Diagram of Jury Box

35 E.g., S—single, D—divorced, W—widowed, M5—married five years, B2—two-year-old boy,†—particularly active in a religious organization, CrJ/V—served on criminal jury that reacheda verdict, Ex—similar personal experience, Mil—military service.




Figure 4. Detailed Jury Form

[3] Where to Stand

You must decide how to position yourself during voir dire: whether to stand,and if so, how far away from and at what angle to the jurors. Some lawyersprefer to remain at counsel table, believing that it is easier and less obtrusiveto read questions and record answers from that position. Others prefer tostand and make use of the psychological advantages of being able to manipu-late distance and angle. Experiments by social psychologists indicate that yourdistance from a prospective juror can influence how freely that personresponds to questions. Distances between the attorney and juror of more thantwelve feet are not conducive to self-disclosure. Closer distances facilitatecommunication and rapport. Studies show that jurors speak more and revealmore about themselves when the questioner stands between three and six feetaway. A direct orientation of the interviewer’s body toward the juror (face toface) may also elicit more verbalization.36

[4] Style

A general discussion of style and manner in court was included in Chapter1, and will not be repeated here. However, some general observations can bemade about ways your personal style can facilitate getting jurors to talk toyou during voir dire.

David Suggs and Bruce Sales have summarized the social science literatureand concluded that the style and demeanor of an attorney can have asignificant effect on the amount of information disclosed by jurors.37 Contraryto the beliefs of some attorneys, they advise against trying to appear just likethe jurors (the “country lawyer” approach). Jurors tend to disclose morereliable information to a person of moderately higher social status than to anequal. Responses are also unreliable when the status difference is very large,

36 See David Suggs and Bruce D. Sales, Juror Self-Disclosure in the Voir Dire: A Social ScienceAnalysis, 56 IND. L. J. 245, 255, 262–64 (1981). But see EDWARD HALL, THE HIDDEN DIMENSION

108–09 (1966) (more effective if you stand at slight angle to prospective juror). 37 Suggs & Sales, supra note 36, at 253–56.




so you should not be aloof. Not surprisingly, experimental data show thatpeople prefer to talk to and reveal more of themselves to warm, friendly people.Experiments also have shown that nonverbal stimuli, such as head-nodding,can encourage the jurors to talk and produce longer responses. However, eyecontact and body movement seem to work differently for men and women.Male attorneys appear to elicit greater self-disclosure from prospective jurorswith limited eye contact and increased body motion (hand gestures, pacing),but the opposite appears to be true for female attorneys.

Suggs and Sales also report that there is a role for aggressive questioning.If you suspect that a juror may be lying about his or her biases, and friendlyquestioning does not seem to elicit honest responses, they suggest that youresort to aggressive questioning. This increases juror anxiety, a conditionunder which jurors are more likely to admit long-held prejudices. Obviously,such a tactic should be used sparingly because of its effect on the way otherjurors will perceive you.

Other common stylistic suggestions include :

● Stay relaxed (easier said than done, however!)

● Ask your questions in a relatively rapid, unhesitating sequence, soyou do not bore the jurors.

● Be courteous and treat the jurors with respect.

● Talk to all of the jurors and treat them all the same so you do notoffend anyone by omitting them.

● Remember and refer to jurors by their names to help build rapport.This is easy to do if you use the chart illustrated in Figure 3.

● Include your client by treating him or her warmly and referring tothe client by name.

● Remain friendly but professional, and avoid commenting on thejurors’ personal lives. In a real trial several years ago, an attemptto be overly friendly resulted in the following dialogue:

Q: Are you married, sir?

A: Yes.

Q: Do you have any children?

A: Yes.

Q: How many?

A: Eight.

Q: Eight? And what — I won’t ask you each age. Approxi-mately, what is the range?

A: One through ten.

Q: That’s on a pretty regular basis.

A: Thirty, forty times a month.38

38 I am grateful Terry Bethel, Sella Professor of Law at Indiana University, for providing mewith the transcript of the voir dire in which these questions appeared.




[5] Indoctrinating the Jury

The detailed suggestions in the preceding section are based on the assump-tion that you want to make a serious attempt to gather information from thejurors in order to exercise challenges intelligently. What if your intentions areless than honorable? What if you wish to communicate information ratherthan collect it? Some techniques obviously will remain the same. Questionsstill should be simple and understandable, and asked in a friendly manner.However, many of the techniques will differ. You no longer want the jurorsto do the talking; rather, you want to indoctrinate them.

It is important to remember that you cannot simply lecture the jury, tellingthem about your theory of the case. You must ask questions, and the questionsmust be justifiable as seeking information relevant to exercising a challenge.It usually is not proper to say:

As you know, the prosecution bears a heavy burden of proving guiltbeyond a reasonable doubt. The law requires you to acquit thedefendant if this high standard is not met.

However, the same speech can be made in question form:

When the judge instructs you that the prosecution bears the burdenof proving guilt beyond a reasonable doubt, will you follow that law?Will each of you be able to vote for acquittal if the state fails to meetthis high standard?

These questions obviously are proper because any juror who says he or shecannot follow the law could be challenged for cause, but they also accomplishyour goal of educating the jury about an important part of your case.

When seeking information, you want to ask open questions of individualjurors. When indoctrinating, you should do the opposite — ask closed, leadingquestions addressed to the whole panel. Speaking distance can also beadjusted. Jurors may be discouraged from responding if you stand fartherback, at least twelve feet from the jury.39

Another, more subtle, way of educating the jury about one of your mainpoints is to provoke a discussion among the jurors and direct it toward theconclusion you want. In another context, you may know this as the Socraticmethod used in many law school classrooms. It has an advantage over overtindoctrination because if the jurors reach a conclusion themselves, they willbe more committed to it. If you simply tell them what the conclusion is, theymay try to think up reasons why you could be wrong — a cognitive processcalled “reactance” by psychologists.40 This method works especially well if youcan identify a juror likely to give the answer you want. David Crump providesthe following example:

If an insurance company is trying to establish a defense of suicide,and if one of the panel members happens to know something about

39 There is some evidence that distances over twelve feet are most conducive to one-waycommunication and persuasion. Stuart Albert and James M. Dabbs, Physical Distance andPersuasion, 15 J. PERSONALITY & SOCIAL PSYCHOLOGY 265 (1970).

40 See generally SHARON S. BREHM AND JACK W. BREHM, PSYCHOLOGICAL REACTANCE: ATHEORY OF FREEDOM AND CONTROL (1981).




suicide — an ambulance driver, etc. — the defense lawyer might ask:“So you have seen lots of suicide cases, right? Have you seen [or heardabout] many where the deceased drove his car into a concrete pier,like in this case . . .?” A criminal defense lawyer claiming mistakenidentification might ask a juror whether [the juror] has ever momen-tarily mistaken someone for someone he knew.41

This kind of voir dire is also more risky, because the jurors may draw conclu-sions that are different from those you want. The ambulance driver may saythat in her experience people do not commit suicide by wrecking their cars;the juror may state that he has never mistaken a stranger for someone heknew if he had a reasonable chance to see the person.

[D] DECIDING WHOM TO CHALLENGE

What do you do with all this information? How do you decide whom tochallenge? There is no consensus among lawyers. Many lawyers suggest thatthe only reasonable course is to follow your intuition. Human behavior, andhow people will react to your case, may simply be too complex to be reducedto sets of identifiable traits in prospective jurors that will make them moreor less likely to be receptive to your case. Studies by social psychologistsconfirm this. Attitudinal and demographic variables account for only ten tofifteen percent of the variability in verdict preference, causing social scientiststo recommend that lawyers not exercise jurors based on one or two traits, buttrust their intuition.42

However, assuming that your intuition fails you, you probably would likesome general advice on how to exercise challenges. The following recommenda-tions represent a sampling of the kinds of advice available in the books andarticles on jury selection tactics. Their inclusion here is not meant as anendorsement of their efficacy; to the contrary, they should all be taken witha grain of salt — some with several grains.

● Similarities. Probably the most common selection strategy is toremove jurors who share the characteristics of the opposing partyor its main witnesses, or who have similar backgrounds and experi-ences. This tactic assumes that women with children will identifywith other women with children, college students with other collegestudents, Latinos with other Latinos, accident victims with otheraccident victims, and so on. There is some empirical support for theidea that experiences produce attitudes that influence how jurorsevaluate people who are similar or different.43

● Attitudes. Also common is to select which jurors to challenge basedon their attitudes toward the kinds of issues involved in the case.This is an imprecise science. For example, in a personal injury case

41 David Crump, Attorneys’ Goals and Tactics in Voir Dire Examination, 43 TEX ST. B. J. 244,247 (1980).

42 Solomon Fulero and Steven Penrod, The Myths and Realities of Attorney Jury Selection Folk-lore and Scientific Jury Selection: What Works?, 17 OHIO NO. U. L. REV. 229, 247–48 (1990).

43 SAUL M. KASSIN & LAWRENCE S. WRIGHTSMAN, THE AMERICAN JURY ON TRIAL: PSYCHOLOGI-

CAL PERSPECTIVES 35–40 (1988).




in which an elderly woman is involved in a traffic accident with ayoung man who had been drinking, the attorneys would questionjurors about their attitudes toward issues like alcohol use, collegestudent binge drinking, the responsibilities of bars to check IDs,the litigation explosion, whether older people are worse drivers,personal injury lawyers who advertise on billboards, large damageawards, the state police, the quality of care they get at the localhospital, and so on. A more sophisticated variation employs a socialscience consulting firm to survey people in the judicial district tofind out what kinds of attitudes actually make a difference inprospective jurors’ opinions about the proper outcome of the trial,so the attorneys can focus on them.

● Authoritarianism. One attitude that appears to have predictivevalue on how jurors will vote in some cases is authoritarianism.Jurors with authoritarian personalities will tend to adhere toconventional middle class values, submit to authority figures,punish violators of social norms, adhere to stereotypes, identify withpower figures, be sexually repressed, and project their own feelingsand attitudes onto others. Social science research on the authoritar-ian personality has been voluminous, and suggests that authoritari-ans are highly punitive, racist, politically conservative, rigid, andacquiescent to authority figures. They tend to render more severeverdicts than anti-authoritarians, except in rape cases. They alsoare more likely to change their opinions to conform to the opinionsof experts.44

● The “just world” hypothesis. A second attitude that some attor-neys look closely for is a juror’s tendency to believe in a just worldin which one gets what one deserves (and deserves what one gets).To strong believers in a just world, good is rewarded and evil ispunished. This is a defense mechanism enabling people to believethat bad things will not happen to them. Just-world believers tendto blame people for their own predicaments, and punish them fortransgressions. Thus, they will tend to blame victims for provokingtheir own misfortunes, in order to perpetuate their own sense ofsafety. For example, women who believe in a just world will tendto blame a rape victim for dressing provocatively or accepting a ridehome, because the belief enables them to feel safe from rape as longas they do nothing to provoke it. Healthy just-world believers willtend to blame the doctor every time a patient dies, because itpreserves their belief that if they eat low-cholesterol diets andchoose good doctors, they will always be healthy.45

● Nonverbal behavior. Some attorneys place emphasis on a juror’sbody language. They assume that a prospective juror will experi-ence increased anxiety when being questioned by a party whom thejuror dislikes, when discussing issues on which the juror has strong

44 See NATIONAL JURY PROJECT, JURYWORK: SYSTEMATIC TECHNIQUES § 18.07 (2d ed. 2001).45 See S. Kassin & L. Wrightsman, supra note 43, at 33–34 (suggesting this tendency might

not have much influence on jurors’ final decisions).




feelings (e.g., racial prejudice), and when lying. This anxiety willmanifest itself in nonverbal communication cues, such as speechdisturbances (self-interrupted sentences, repeating phrases, inap-propriate laughter, etc), use of an artificially formal speaking style,talking excessively long or fast, increase in the frequency of eyemovements (shifty-eyed), facial expressions, hand movements, andbody language.46

● Stereotyping. Some attorneys base their challenges on broadstereotypes about the groups to which jurors belong. Prosecutorsroutinely remove African-Americans from the jury because theybelieve that as a group, African-Americans will favor the defense.Many attorneys equate level of education with political attitudes,assuming that college graduates will be more liberal and forgivingthan those who did not go to college. Women may be stereotypedas being more emotional than men, and therefore pro-plaintiff inpersonal injury cases. Empirical research has shown that stereotyp-ing is not a reliable way of selecting jurors. 47 It also will oftenviolate the Batson rule.

● Prior jury service. Some research suggests that a juror’s prior juryexperiences will affect how the juror will act in a later case. If thejuror previously sat on a case involving a minor offense, he or shewill expect a stronger case if the current charge is more serious,and will therefore be more likely to acquit than a new juror. Onthe other hand, if a prospective juror previously sat on a seriouscase, he or she will not demand that the proof be as strong if thepresent case is less serious — thus, the juror will be more likelyto convict.48

● Leadership strategy. Some lawyers believe that the final jurydecision is often strongly influenced by one juror who emerges asthe leader. If you identify someone you believe to be favorable tothe other side who is likely to become the jury leader because ofthe status and power the juror holds in the external world, thisstrategy suggests challenging that person ahead of more passivejurors with worse attitudes.

● Crackpot strategies. Some lawyers have employed psychics, hyp-notists, physiognomists, and handwriting analysts in an effort topredict juror behavior.49

46 David Suggs and Bruce D. Sales, Using Communication Cues to Evaluate Prospective JurorsDuring the Voir Dire, 20 ARIZ. L. REV. 629, 632–38 (1978).

47 See S. Kassin & L. Wrightsman, supra note 43, at 29; STEVEN PENROD ET AL., TheImplications of Social Psychological Research for Trial Practice Attorneys, in PSYCHOLOGY AND

LAW 439 (D. Muller et al., eds., 1984). 48 Dennis Nagao and James Davis, The Effects of Prior Experience on Mock Juror Case Judg-

ments, 43 SOCIAL PSYCHOLOGY Q. 190 (1980). 49 See, e.g, PAUL LUVERA, PLAINTIFF’S APPROACH TO JURY SELECTION IN THE INJURED CHILD

CASE, IN NEW FRONTIERS IN LITIGATION 12–13 (G. Holmes ed. 1979) (handwriting analysts); JohnMcConahay, Courtney Mullin and Jeffrey Frederick, The Uses of Social Science in Trials withPolitical and Racial Overtones: The Trial of Joan Little, 41 LAW & CONTEMP. PROBS. 205, 214(1977) (psychic used to advise attorneys on jurors’ aura, “karma,” and psychic vibrations); S.Kassin & L. Wrightsman, supra note 43, at 58 (reporting expert who advised picking jurors basedon physiognomic cues, i.e., facial characteristics).




● The grandstand play. Announce that you are so confident in thestrength of your case, that you will take the first twelve jurorscalled.

● Use more than one method. Perhaps the one thing we can sayfor certain about juror selection strategies is that you should notchallenge a juror on the basis of any one single factor. Most jurorswill have some strengths and some weaknesses. The more informa-tion you have, and the more factors you consider, the better youwill be able to decided whom to challenge.

[E] EXERCISING YOUR CHALLENGES

The exercising of challenges is a delicate act, necessary to get rid of badjurors, but rife with dangers of irritating those who remain. As Melvin Bellipoints out:

The prospective jury panel is a small community itself . . . resentingencroachment on the right of privacy of one of its members. Thus,when exercising the peremptory challenge, while the lawyer might bemost happy to be rid of that particular juror, [the lawyer] should notaffront the remaining community of jurors or perhaps the remaining. . . friend of that juror[.] I have seen trial counsel repeatedly, withouteven looking at a challenged juror, one who has lost a day’s wages anda day’s time, peremptorily dismiss such a juror without even a nodof his head or thanks.50

Although all lawyers agree that you should exercise challenges withcourtesy, they do not agree how this is best accomplished. Belli suggests thatyou look at the juror and say, “We excuse Mrs. Jones. Thank you very muchfor your coming here today.” Others favor making a request to the court andletting the judge excuse the juror, i.e., “Your Honor, at this time we wouldask that Mr. Moor be excused,” and then letting the court thank and excusethe juror. There is consensus that, if possible, challenges should be made atthe bench out of the hearing of the jury, especially challenges for cause inwhich you must state a reason why a particular juror is biased.

Every lawyer has his or her own secret strategy for exercising challenges.The trial advocacy literature is full of advice on how to trick your opponentinto challenging a juror you also wanted removed, how to employ peremptorychallenges in a way that leaves a particular juror as the most likely foreperson,how to confuse your opponent by challenging an obviously favorable juror, andso on. Most of this advice conflicts, and no two advocates seem to agree onwhat you should try to accomplish. In the typical case, you probably do noteven have enough peremptory challenges to remove all the obviously hostile,unfriendly jurors, let alone to engage in that kind of delicate tactical maneu-vering suggested. If you represent the intoxicated defendant in a personalinjury case, and there are three of the plaintiff’s friends and two membersof M.A.D.D. on the jury and you only are allowed four peremptory challenges,most of the fine points of jury selection strategy can be safely ignored.

50 M. Belli, supra note 30, at 795–96.




Nevertheless, a few general tactical suggestions can be made:

● Use challenges for cause before you use peremptory challenges.

● Be wary of using up your peremptory challenges too fast —someoneworse will inevitably be called as the next juror.

● Try to identify jurors who are friendly with each other (by watchingwhom they sit with or talk to, or by asking them). If you challengeone, challenge them all to avoid making enemies.

● Use a pairing strategy which recognizes that, in jury deliberations,natural allies will tend to support each other, and isolated jurorswill have little influence. For example, if you are down to your lastperemptory challenge, it is better to use it to break up a pair ofnatural allies than to remove an unfavorable juror who is alreadyisolated. Without an ally, psychologists have shown that most jurorsare unable to resist pressure from the majority to conform.51

NOTE

Assistance of social scientists. The growth of social science jury consultantshas been phenomenal in the last two decades. Many lawyers now feel that,if you can afford the considerable expense, you should employ them in everycase. These consultants can conduct surveys of community attitudes, correlatewhether any attitudes might affect how jurors would vote in your specific case,and help design voir dire questions to reveal the key attitudes. See DONALD

E. VINSON, JURY TRIALS: THE PSYCHOLOGY OF WINNING STRATEGY (1986).However, there is little evidence that this kind of social science assistance isof any significant help. The reason is that when people are highly involvedin a cognitively demanding task and when they must reach group decisions,their individual personalities and attitudes become unimportant compared tothe merits of a case. Both conditions would be present in jury deliberations.The leading social psychologists who study jury behavior conclude thatscientific jury selection may be more reliable than using stereotypes basedon sex, race and national origin, but is not ultimately very effective. SolomonM. Fulero and Steven Penrod, The Myths and Realities of Attorney JurySelection Folklore and Scientific Jury Selection: What Works?, 17 OHIO NO.

U. L. Rev 229, 244–51 (1990); Reid Hastie, Is Attorney-Conducted Voir Direan Effective Procedure for the Selection of Impartial Juries, 40 AMER. U. L.REV. 703, 718–19 (1991); Michael J. Saks, Blaming the Jury, 75 GEO. L. J.693, 710–11 (1986); VALERIE HANS & NEIL VIDMAR, JUDGING THE JURY 90(1986).

[F] ERROR AND PROTECTING THE RECORD

Grounds for appeal, of course, must be based on the erroneous action of thetrial judge. It is difficult, however, for the trial judge to commit clear errorduring jury selection because control of voir dire is almost completely a matterof judicial discretion. Unless the judge obviously has obstructed the seating

51 S. Kassin & L. Wrightsman, supra note 43, at 174.




of an impartial jury, there is little chance that a ruling during voir dire willwarrant reversal.

Even if an error is committed, it must be properly preserved for appeal. Inmany courts, preserving error in voir dire is nearly impossible because theprocedure is not transcribed. The minimal requirement for preserving anallegation of error is to move that the court have a reporter present so thatthe objection and its basis will appear in the record.

If you challenge a juror for cause, and the judge overrules you, you canappeal only if you have complied with the following requirements:

● Specificity. You must have clearly stated grounds for your chal-lenge. A general challenge (“I challenge this juror for cause”) is notsufficient. The court must be told the reasons.52

● Timeliness. Your challenge to the juror must have been timely. Inmany states, challenges for cause must be made as soon as thegrounds become apparent, and before any peremptory challengesare exercised. In any event, you must exercise a challenge beforethe juror is seated and sworn.53

If your opponent challenges a juror for cause that should be denied, but thecourt erroneously grants it, you can appeal only if you make a timely objection(contemporaneous with the judge’s ruling) and explain why you believe thechallenge should not be allowed.54

Objections to particular lines of questioning are subject to similar specificityand timeliness requirements. If you want to prevent your opponent from ask-ing prejudicial questions, such as raising the issue of insurance, you mustmake a timely objection stating specific grounds. If you are prevented frompursuing a legitimate line of inquiry, you must have made a motion to allowthe questions, stating specific legal grounds.

One final procedural trap may catch the unwary. You must exhaust all yourperemptory challenges in order to appeal the denial of a challenge for cause.Otherwise the error is harmless, because you could have removed the offend-ing juror yourself by using your last peremptory challenge.55 In some states,a claim of error also will be preserved if you use your last peremptory chal-lenge to remove a juror who should have been removed for cause, if you arethereby unable to challenge another undesirable juror.

NOTE

Objecting to seating of juror. In some jurisdictions, a claim that the judgeimproperly refused to allow a question to a specific juror is waived if theattorney does not object to the seating of that juror. See Spencer v. Common-wealth, 384 S.E.2d 785 (Va. 1989):

During the voir dire of prospective juror Patricia Jackson, Spencer’scounsel asked Jackson the following question in an attempt to show

52 See Long v. State, 823 S.W.2d 259, 264 (Tex. Crim. App. 1991). 53 E.g., Spencer v. Commonwealth, 384 S.E.2d 785 (Va. 1989). 54 See Green v. State, 771 S.W.2d 576 (Tex. App. 1989). 55 See, e.g., Avera v. State, 761 So. 2d 900, 905-06 (Miss. 2000).




bias: “If an individual who is a scientist, an expert gets on the standand tells you a fact, would you accept that as fact simply because heis a scientist?” The trial court ruled the question improper on theground that Spencer was “asking the juror to pass on testimony beforethe whole evidence is there.”

Under Rule 5:25, certain principles govern our review of assign-ments of error concerning the voir dire of prospective jurors. If a partyobjects to rulings made during the voir dire of a prospective juror, butsubsequently fails to object to the seating of that juror, the party haswaived the voir dire objections. Grounds of objections to the seatingof a juror that are not stated with sufficient specificity at the time ofthe trial court’s ruling will not be considered on appeal.

Although Spencer objected to the court’s rulings during voir dire,he voiced no objection when the court seated Jackson on the jury panel.We hold, therefore, that Spencer waived the objections. . .

§ 3.09 ETHICAL CONSIDERATIONS

[A] GENERAL STANDARDS

The ABA Model Rules of Professional Conduct contain no provision thatexplicitly applies to jury selection. Only the general prohibitions apply. Alawyer may not:

● Make “a false statement of material fact or law to a tribunal.” ModelRule 3.3 (a)(1).

● “Knowingly disobey an obligation under the rules of a tribunal.”Model Rule 3.4 (c).

● Allude “to any matter that the lawyer does not reasonably believeis relevant or that will not be supported by admissible evidence.”Model Rule 3.4 (e).

● “Assert personal knowledge of the facts in issue . . . or state apersonal opinion as to the justness of a cause, the credibility of awitness, the culpability of a civil litigant or the guilt or innocenceof an accused.” Model Rule 3.4 (e).

The American Bar Association, Standards for Criminal Justice, Standard4-7.2(c), provides:

The opportunity to question jurors personally should be used solelyto obtain information for the intelligent exercise of challenges. Alawyer should not intentionally use the voir dire to present factualmatter which the lawyer knows will not be admissible at trial or toargue the lawyer’s case to the jury.

Commentary. The process of voir dire examination of prospectivejurors by the lawyer is often needlessly time consuming and isfrequently used to influence the jury in its view of the case. . . .[Lawyers must] limit questions to those that are designed to lay a




basis for the lawyer’s challenges. The observation that the voir diremay be used to influence the jury in its views of the case is rejectedas an improper use of the right of reasonable inquiry. . . . The useof the voir dire to inject inadmissible evidence into the case is asubstantial abuse of the process. Treatment of legal points in thecourse of voir dire examination should be strictly confined to thoseinquiries bearing on possible bias in relation to issues in the case.

[B] INTENTIONAL VIOLATION OF PROPER JURYSELECTION PROCEDURE

Rule 3.4 (c) of the Model Rules of Professional Conduct states that a lawyershall not “knowingly disobey an obligation under the rules of a tribunal.” Itis therefore unethical to intentionally violate the rules of proper voir dire. Youmay not ask an improper question or engage in illegal conduct and thenwithdraw it or apologize if you get caught. That may satisfy the legalrequirement by removing improper matter from the jury’s consideration, butit is still unethical. Under this general rule, it is unethical to:

● Engage in racially motivated peremptory challenges and then comeup with clever “non-racial” justifications for them.

● Ask fact-specific hypothetical questions, in jurisdictions that pro-hibit them.

● Elicit promises from jurors that they will return a specific verdict.

● Use questions about exposure to favorable pretrial publicity as anexcuse to inform other jurors about the publicity.

● Ask questions that disclose inadmissible evidence (especially thedefendant’s large insurance policy) without a good faith basis forbelieving it will lead to the discovery of biased jurors.

[C] REVEALING PERSONAL INFORMATION ABOUTYOURSELF

Russ Herman, past-president of the Association of Trial Lawyers of Amer-ica, suggests that you should reveal private things about yourself during voirdire. It will make jurors more comfortable revealing personal informationabout themselves, and will help jurors identify with you. He suggests thefollowing question:

Jurors, this case invokes a claim by a seven-year-old boy against atoy manufacturer. As the father of a boy and two girls, I am familiarwith the brand name “X”. Tell me, juror Edwards, do you havechildren? What are their ages? Can you tell what you know aboutbrand “X”? How do you select toys for your eight-year-old son, Tony?56

In a similar vein, Gerry Spence, one of the best known trial lawyers in thecountry, suggests the following question:

56 RUSS M. HERMAN, Jury Selection in Civil Litigation, TRIAL, Jan. 1989, at 71, 76 (emphasisadded).

§ 3.09 ETHICAL CONSIDERATIONS 141



I want to introduce you to some of my friends. I’d like you to meetour clerk of the court, Mr. Jones. Another one of my friends is thereporter here. He’s a very important person.57

Indeed, since a good voir dire is like a conversation between you and the jurors,it is almost impossible to conduct a good one without referring to yourself,revealing information about yourself, and forging personal ties betweenyourself and some of the jurors.

However, Rule 3.4 of the Model Rules of Professional Conduct prohibits youfrom asserting your own personal knowledge of facts or stating your opinionsabout any aspect of the case. It may be effective advocacy for you to try tomake friends with the jurors and ingratiate yourself with them, but there arelimits. You cannot accomplish this by violating the rule against injecting yourown personal experiences into the trial.

NOTE

Is using social science consultants unethical? When the practice of usingconsultants first emerged, some writers made wild accusations that socialscientists could somehow read prospective jurors’ minds and would be ableto stack the jury, and that it was so effective it should be banned as unfair,comparing the application of social science to jury selection with Adam’slegendary bite of the apple. Amitai Etzioni, Creating an Imbalance, TRIAL at28 (Nov.–Dec. 1974); Threatening the Jury Trial, Washington Post, May 26,1974, at C3, col. 1. If any of these assumptions about scientific jury selectionwere true, it would raise serious ethical issues. Responsible social scientistswho have examined empirical data conclude that social scientists have no suchpower, that individual characteristics are relatively unimportant factors inmost juror decisions, and that scientific jury selection is not significantlybetter at identifying biased jurors than the intuitions of experienced triallawyers. See Reid Hastie, Is Attorney-Conducted Voir Dire an EffectiveProcedure for the Selection of Impartial Juries, 40 AMER. U. L. REV. 703,718–19 (1991); Michael J. Saks, Blaming the Jury, 75 GEO. L. J. 693, 710–11(1986); VALERIE HANS & NEIL VIDMAR, JUDGING THE JURY 90 (1986).

One moral issue remains. John McConahay, Courtney Mullin and JeffreyFrederick, The Uses of Social Science in Trials with Political and RacialOvertones: the Trial of Joan Little, 41 LAW AND CONTEMPORARY PROBLEMS

205 (1977) summarize their concern:

We also are concerned, with Etzioni and others, that the use of theseexpensive techniques will magnify the already huge disparity betweenthe quality of defense available to the rich and well-connected, andthat available to the poor and marginal. . . . Moreover, routine useof these techniques by both prosecution and defense may simply causeeach side to cancel the other out while raising the cost of a jury trialto both. Thus, we may raise the status quo ante in a system of justicethat is already very expensive to both sides.

57 GERRY SPENCE, A Voir Dire Masterpiece, TRIAL DIPLOMACY J., Fall 1980, at 8, 9–10, 56(emphasis added).




However, the problem of disparity of resources is not new. It pervades thelegal system, and does not raise an issue of trial ethics.

§ 3.10 DOES CAREFUL JURY SELECTION MAKE ANYDIFFERENCE?

Some attorneys believe jury selection is the single most important part ofthe trial, and that they can even win cases by the shrewd use of challenges.Herald Fahringer, a prominent trial attorney, has written:

Jury selection is the most important part of any criminal trial. If alawyer has a difficult case, but succeeds in obtaining a jury sympa-thetic with [the] client’s cause, the chances of winning improvesubstantially. On the other hand, a client may have an excellentdefense, but if [there are] twelve antagonistic jurors, sometimes theskill of no lawyer can save him. In most cases, the defendant’s fateis fixed after jury selection. Consequently, counsel’s ability to selecta favorable jury in a criminal case is of paramount importance.58

Others are more pessimistic about the process. It is not very realistic to thinkthat an attorney can find out what a juror is really like in only a few minutes.In one experiment, social scientists asked jurors who had been challenged bythe attorneys to remain in the courtroom as “shadow juries” and report at theend how they would have voted. They found that some attorney exercisedchallenges well and others did not.

We designed a rough performance index that evaluated the extent towhich counsel employed peremptory challenges to dismiss hostile orfriendly jurors. . . . The collective performance of the attorneys is notimpressive. The prosecutors’ average score is close to zero (10.5).Thus, in the aggregate, the prosecutors made about as many goodchallenges as bad ones. The defense counsel’s average performancescore (`17.0) is slightly better, which suggests that, on the average,defense attorneys shifted in their favor the proportion of not guiltyvotes in the venire. These averages are misleading, however, becausethe fluctuations around them are so large. The prosecutors’ scoresfluctuate between `62 (Case 11) and 161 (Cases 6 and 12); the de-fense counsel’s scores fluctuate between `48 (Case 5) and 162 (Case8). The average fluctuations around the mean scores are 538 for theprosecutor and 525 for the defense, suggesting that in this limitedsample of 12 cases, attorney performance was highly erratic. As aresult, even though attorneys’ scores on the average were around zero,in some cases the attorneys performed very poorly, and in others verywell. And if, in a case, one side performs poorly while the other sideperforms well, such disparity may have interesting results.

[One] conclusion emerging from this study is that there are casesin which the jury verdict is seriously affected, if not determined, bythe voir dire. At times, one attorney will significantly outperform the

58 Herald P. Fahringer, In the Valley of the Blind: A Primer on Jury Selection in a CriminalCase, 43 LAW & CONTEMP. PROBS. 116, 116–17 (1980).

§ 3.10 DOES CAREFUL JURY SELECTION MAKE ANY DIFFERENCE? 143



opposing attorney in challenging hostile jurors. Lawyers apparentlydo win some of their cases, as they occasionally boast, during or atleast with the help of, voir dire.59

§ 3.11 JURY MANAGEMENT THROUGHOUT TRIAL

Once a jury has been selected, the jurors will take an oath to “well and trulytry this case, without bias or prejudice, on the facts and law alone,” receivea set of preliminary instructions from the judge on how to be a good juror,and then will be left to the task of listening to and trying to remember allthe evidence for later deliberations.

Preliminary instructions will cover topics such as not talking about the caseduring recesses, not talking to the lawyers or witnesses, and avoiding newsaccounts of the trial when they go home in the evening.60 The judge will goover the order of trial, from opening statements to closing arguments, andmay give instructions on handling exhibits, drawing no inference fromobjections, and disregarding inadmissible evidence. Jurors will be toldwhether they can take notes or ask questions of the witnesses. Many judgeswill also include hortatory language about the importance of the jury in oursystem of justice.

After the trial has started, the jurors’ obligations are to remain fair,impartial, sober and attentive throughout the trial. The law is well summa-rized in Hasson v. Ford Motor Co.,61 in which a juror was observed readinga novel entitled “A Night in Byzantium” during trial proceedings, and otherjurors were seen working crossword puzzles. When questioned, the jurorsadmitted the activities but testified that they were able to pay attention tothe testimony of witnesses anyway. The court held:

A jury’s failure to pay attention to the evidence presented at trial isa form of misconduct which will justify the granting of a new trial ifshown to be prejudicial to the losing party. . . . The duty to listencarefully during the presentation of evidence at trial is among the mostelementary of a juror’s obligations. . . .

Although implicitly recognizing that juror inattentiveness mayconstitute misconduct, courts have exhibited an understandable reluc-tance to overturn jury verdicts on the ground of inattentiveness duringtrial. In fact, not a single case has been brought to our attention whichgranted a new trial on that ground. . . . Perhaps recognizing thesoporific effect of many trials when viewed from a layman’s perspec-tive, these cases uniformly decline to order a new trial in the absenceof convincing proof that the jurors were actually asleep during mate-rial portions of the trial. . . .

59 Shari S. Diamond and Hans Zeisel, The Effect of Peremptory Challenges on Jury and Verdict:An Experiment in a Federal District Court, 30 STAN. L. REV. 491 (1978).

60 Juries are rarely sequestered. See, e.g., Johnson v. State, 749 N.E.2d 1103, 1107 (ind. 2001)(decision to sequester is discretionary).

61 650 P.2d 1171 (Cal. 1982).




A number of decisions have considered claims of juror intoxicationwhen presented with evidence that jurors imbibed alcoholic beveragesprior to hearing evidence or engaging in deliberations. The decisionshave generally rejected claims of misconduct if satisfied that theconsumption of liquor was not likely to have affected the indulgentjurors’ capacity to competently perform their duties . . ..

A few other cases have rejected allegations of misconduct basedupon the apparently inattentive demeanor of jurors during trialproceedings. In State v. Williams . . ., a juror was observed readinga newspaper during the giving of testimony. The trial judge had thepaper taken away. The appellate court upheld the judge’s decision notto declare a mistrial, noting that the complaining party had shownno demonstrable prejudice. In Ferman v. Estwing ManufacturingCompany . . . the appellate court overturned an order granting a newtrial because a juror had appeared bored and inattentive during thetrial. The court held that the party seeking a new trial must affirma-tively establish prejudice resulting from juror inattention. Finally, inWofford v. State . . . the court found no error in the trial judge’srefusal to dismiss a juror who yawned and cleaned his fingernailsduring the giving of instructions.

Here the jurors engaged in essentially neutral, albeit distracting,activities at unspecified times during the presentation of evidence.There was . . . no substantial likelihood that actual prejudice [toeither party] may have resulted from the jurors’ activities. . . .

We take this opportunity to emphasize our unwillingness to allowthe impeachment of jury verdicts on a bare showing that some jurorsfailed to conform their conduct to the ideal standard of utmostdiligence in the performance of their duties. Even the most diligentjuror may reach the end of his attention span at some point duringa trial and allow his mind to wander temporarily from the matter athand. We do not condone such conduct and trust that trial courts willbe alert and take appropriate action if it occurs. But we recognize thatthis is especially likely to occur in such a complex and lengthy trialas the case at bar. Retrials are to be avoided unless necessitated bya more substantial dereliction of jurors’ duties than was evident inthis case.

NOTES

1. Note-taking. Juror note-taking was once widely prohibited in Americantrials. Judges feared that the jurors who took notes would have disproportion-ate impact on deliberations, which would compound the effect of errors andomissions in the notes. In recent years, jury note-taking has become morecommon. Some jurisdictions provide jurors with notebooks; most leave thematter to judicial discretion. See Larry Heuer & Steven Penrod, SomeSuggestions for the Critical Appraisal of a More Active Jury, 85 NW. U.L. REV.226, 228–31 (1990). Experiments by social psychologists suggest that jurornote-taking neither aids nor hinders juror memory, attention or participation.See Larry Heuer & Steven Penrod, Juror Notetaking and Question AskingDuring Trials, 18 LAW & HUM. BEHAV. 121 (1994).

§ 3.11 JURY MANAGEMENT THROUGHOUT TRIAL 145



2. Asking questions. May a juror ask questions of witnesses? The courts aredivided. Consider United States v. Hernandez, 176 F.3d 719 (3d Cir. 1999),involving the hijacking of a truck:

The District Court allowed jurors to pose questions by handing thecourt written questions for the court’s review. It appears from thisrecord (and appellant does not argue to the contrary) that the courtwould then allow the attorneys to see the question so that counselcould make whatever objections they deemed appropriate, and thecourt could thus determine the admissibility and propriety of aquestion outside the hearing of the jury before asking the question.One juror did submit a question in this manner. The juror asked:“what kind of rear doors are on the rear of the trailer?”. . . .

[The question of] the propriety of allowing juror questioning is anissue of first impression in this circuit. Although we have not previ-ously addressed this issue, several other courts of appeal have.Although those courts have consistently expressed concern over thedangers of the practice, they have refused to adopt a rule prohibitingjuror questioning of witnesses during the course of a criminal trial.(citations omitted) We take this opportunity to approve of the practiceso long as it is done in a manner that insures the fairness of theproceedings, the primacy of the court’s stewardship, and the rightsof the [parties]. . . .

In United States v. Stierwalt, . . . the court held that the DistrictCourt did not err where questions were submitted in writing and allevidentiary issues were resolved before the judge read the questionsto the witness. . . . In United States v. Bush,. . . jurors directlyquestioned witnesses, including the defendant. . . . The court [held]that direct questioning by jurors is a ‘matter within the judge’sdiscretion. . . . [although] we strongly discourage its use.”

Allowing jurors to pose questions during a criminal trial is aprocedure fraught with perils. In most cases, the game will not beworth the candle. Nevertheless, we are fully committed to the principlethat trial judges should be given wide latitude to manage trials. Weare, moreover, supportive of reasoned efforts by the trial bench toimprove the truth seeking attributes of the jury system. Consistentwith this overall approach, and mindful that the practice . . . mayoccasionally be advantageous, especially in complex cases and undercarefully controlled conditions, we hold that allowing juror-inspiredquestions in a criminal case is not prejudicial per se, but is a mattercommitted to the sound discretion of the trial court.

See also State v. Culkin, 35 P.3d 233, 252–54 (Haw. 2001) (questions permittedif screened by judge and attorneys have opportunity to object); Commonwealthv. Britto, 744 N.E.2d 1089, 1103–04 (Mass. 2001) (must be in writing andactually asked by judge). But see State v. Gilden, 759 N.E.2d 468 (Ct. App.Ohio 2001) (juror questioning too dangerous, not permitted).



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