The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011 15

Voir Direby Sandra R

ohrstaff

You have your trial suit on. You have your client sitting next to you. The jury panel walks into the room. The deputy puts 13 in the jury box. When the judge gives the go ahead, you stand up and face the people in the box.

Now what?We have the unique ability in voir dire to give

prospective jurors the opportunity to talk to us. The only other time during a trial when they speak to us is when they render their verdict, and you certainly do not want the verdict to be the first time you hear from them.

OverviewEarly in my law career, voir dire scared me to

death. Some panel member would blurt out some comment that was negative towards the kind of case I was trying and, for the life of me, I could not figure out what to do with that answer. Should I debate the topic? Disagree with the speaker so the potential jurors would know my point of view? Ignore it and pretend the words were never spoken? Discourage any further comments because that out-spoken person could poison the opinions of others? I painfully seem to recall that I would nod my head, look down at my notes and (if I could still read them) move on to the next question. No more.

I now welcome the chance for all outspoken potential jurors to let me have it, to give me a piece of their mind. Why? Because I now understand that the purpose of voir dire is not to select the good jurors but to deselect the ones who would be harm-ful to my client and our case. After all, highlight-ing the best jurors for your side will only result in your opponent’s striking them. By concentrating on deselecting rather than selecting, you will be paying attention to those individuals you want to strike.

Your first job is to get every member of the jury panel talking. The jurors who scare me the most now are the silent ones, the ones who never ver-bally responded to any question. The jurors about whom we know nothing are the dangerous ones. I am not saying they are all against us; I am saying that our not knowing anything about them is its own danger. Is that woman on the back row silent because she is shy, or does she have some agenda and wants to give us no information so we will not know what she has in mind?

Even before voir dire As you prepare for trial, and well before you

step into the courtroom or prepare your voir dire questions, think about the issues that the jury will be asked to decide in your case. For those issues

How to get great answers from prospective jurors - and what to do when you get them

that will be difficult for you to address or that will be the greatest challenge for you to prove, decide what kinds of attitudes and world view will be most hurtful to your client. Voir dire is different for every case, so spend time thinking about your evidence and its effect on the people who will sit on your jury.

Depending on the facts in your case, think about whether to ask the judge before voir dire begins to allow questioning at the bench of a juror who answers a question in a way that alerts you to the possibility she would be embarrassed answering in front of the other panel members. (For instance, in a rape case, you need to know of prospective jurors’ experiences with rape and other violent crimes.)

Request and get a copy of the list of jury panel members who will be called for your case. The stat-ute allows you access to the information three full business days before the trial.1 Get it and review it to get a “feel” for your panel before you even stand up in front of them. The information from the court will give you some ideas for questions even before you stand up to do voir dire.

To accomplish your goal of deselecting danger-ous prospective jurors, the first rule is one you’ve heard so often it may seem meaningless: Be your-self. You really cannot establish a relationship with those jurors who will be most receptive to your case if you have taken on some phony persona.

You need a system for keeping track of which panel member says what in response to the impor-tant questions so you can spend your time interact-ing with them and, of course, so you can argue for or against striking.

A voir dire structureYou cannot establish a relationship with ev-

ery prospective juror unless you have created an atmosphere in which they are comfortable speak-ing to you. Here is a structure that takes you from least stress-inducing to more potent questions in a civil case. The structure is not rigid, however, because things will always pop up during voir dire that require you to follow up and take things “out

1. Upon request, the clerk or sheriff or other officer responsible for notifying jurors to appear in court for the trial of a case shall make available to all counsel of record in that case, a copy of the jury panel to be used for the trial of the case at least three full business days before the trial. Such copy of the jury panel shall show the name, age, address, occupation and employer of each person on the panel. Code of Virginia, §8.01-353(a)

16 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

of order,” but the general principle of least-to-most personal should be followed.

• Introductory remarks about the voir dire process• Question each juror from information on jury

form• Any panel member with a case that may be

tried at this term of court (§8.01-340)• Prior jury experience of panel members• Do any of the panel members know each other

and, if so, in what way

Introductory remarks about the voir dire process

Some lawyers decide not to give introductory remarks, opting instead to just get started with ques-tions. You will have listened to the judge’s intro-ductory remarks, and they should not be repeated. You do not want to be seen as just another lawyer standing up there making a speech. If you do make introductory remarks, here are some suggestions.

No right or wrong answerThere is no way panel members can give a right

or wrong answer because no one will be judgmen-tal of their answers. (This is a promise you have to keep, of course.) The only way a fair jury can be selected is if the prospective juror will make a full disclosure.

Importance of the questioning processDefine what will be expected during voir dire.

They will be only asked questions that the lawyer believes are relevant to obtaining a fair and impar-tial jury. The “law” entitles the lawyer to ask ques-tions on voir dire. We need honest responses, not just socially acceptable ones.

Panel members will not be judged adversely for speaking truthfully

They will be encouraged to state their bias and prejudices without fear of being judged by others. Give reinforcement to those who speak out - com-mend them for being forthright and speaking their true feelings.

Now, it is their turn to talk

Jury list informationUse the information on the jury list you got from

the court. It includes the name, address, age and oc-cupation of each of the panel members. It is easy for people to answer non-threatening questions about themselves, and asking each panel member indi-vidually results in your having gotten everyone to speak up in the courtroom. (See “Voir Dire: Talking with Each Potential Juror” by Sandra M Rohrstaff, The Journal, Vol. 17, No. 2, 2005 for an example of how this approach was used successfully in a

• Burden of proof• Panelists’ experience with issues like the ones

in your case• Bias/attitude questions• Too many lawsuits• Money damages in civil cases• Wrap up

Detailed outline for voir diretrial.) Furthermore, you have a responsibility under the statute to verify the information provided by the panel members. (“. . . the parties in the case shall be responsible for verifying the accuracy of such information. Code of Virginia, §8.01-353(a).)

Go through the list of people who will testifyAnother approach is to start by listing the names

of the witnesses who will testify to find out of any of the panel members know them. This line of ques-tions is often left until last, but by putting it first, you get a feel for those who are eager to respond, even if with head nods, and observe facial expressions.

Do any panel members know other panel mem-bers?

This is especially important when you are in a small community where it is likely that people know each other in community activities, church, school, etc.

Prior service on a jury• Have any of you served on a jury before?• Were any of you the foreperson?• Did your jury reach a verdict?• Was your jury service satisfactory or unsatis-

factory?

Burden of ProofIf yours is a civil case, be sure to make the

distinction between preponderance of the evidence (which may not be familiar to panel members) and beyond a reasonable doubt (which they have likely heard of from TV). Then get to the fairness issue by asking a question along these lines:

• Do any of you feel it is unfair to the defendant that our burden is only more likely than not instead of beyond a reasonable doubt?

Experience with the types of issues in your caseAsk these questions in terms of the panel mem-

bers themselves and of close family members or friends.

• Does anyone have legal training or training in the law field?

• Does anyone have training or experience in law enforcement?

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• Does anyone have training or experience in medicine, or volunteer at a hospital or medical facility?

• Ever had a hysterectomy?• Ever had to wear a cholostomy bag?• Ever been injured in an automobile collision?• Ever been hunting, in a hunting accident where

someone was shot?

Bias/attitude questionsThese questions are examples of what you might

ask in a medical malpractice case and are examples only. These questions really go to the heart of what you want to hear from panel members. Think about them carefully in your own case. Responses to these types of questions require thoughtful, detailed fol-low up, so think about that before you start - and do not neglect the follow up.

• Would you agree that a healthcare provider can sometimes provide inappropriate care and can cause the patient to experience a difficult outcome? You can raise your hand if you agree with that. (There will be a show of hands.)

• Do any of you feel that a healthcare provider is never responsible if the patient has difficulties or complications after the care and treatment by the doctor? If anyone feels that way, they can raise their hand. (May be some hands raised.)

• Some people just don’t believe a doctor should be sued. Since we have sued a doctor in this case, we need to know if anyone agrees that doctors should not be sued. Do any of you believe that a doctor should not be sued? (May be some hands raised.)

• Do any of you believe a doctor should not be held responsible if an injury occurs as a result of that doctor’s negligence? (May be some hands raised.)

• Have any of you changed doctors because of concerns you have had in the last few years?

• Do any of you believe doctors should be treated differently from any other civil litigant or two people who come to court?

• Do any of you believe that a doctor can be neg-ligent and held responsible even if they didn’t intentionally harm the patient?

• Some folks feel that because doctors mean to do well, it’s not fair to sue them when they are negligent. Other people feel the opposite way, that if a doctor is negligent, they should be sued. Can you raise your hand if you are closer to the group that believes it is not fair to sue a doctor if they are negligent?

If no response, then ask something like: So, I take it that everyone would raise their hand that you think it is fair if the doctor is negligent to sue them?

• Is there anyone who, if the evidence justified it, would hesitate to award full and fair compensa-tion for someone’s injuries in a case like this?

In other words, is there anyone who says, ‘su-ing to recover damages is wrong and I’m not going there; I’m not going to have any of that’?

Too many lawsuitsThere are some folks who believe there are just

too many lawsuits. You will never change their mind in voir dire so do not even try. If you have set up the kind of atmosphere that allows for conversa-tion and expression of ideas, then you will get some valuable information with this series of questions.

• Has anyone ever sued [someone like the defen-dant - doctor, nurse, police officer, whatever]?

• Has anyone ever been involved in a lawsuit of any kind?

What kind? When? Was it resolved to your satisfaction?

• Some folks believe there are too many law-suits against doctors and health care providers. Other people believe a patient has a right to file a lawsuit. And that’s very close to one of my other questions. Does anybody feel that they’re closer to the folks who feel there are too many lawsuits against doctors [or too many lawsuits generally]?

Go to each juror who raises a hand and ask, “Can you tell me why you feel there are too many lawsuits [generally or specifically] against doctors?”

Money damages in civil casesIn a civil case, you cannot hide from the fact

that you will be asking for money damages. You must talk to the panel members about their attitudes about paying money damages and, especially, about whether anyone has a fixed “cap” in their mind. This kind of questioning is especially important in wrongful death cases, regardless of how the death occurred, because some people think the types of damages allowed in those cases is wrong. Here are some ways to get to these issues.

• I want to talk to you a little bit about money, because this is a civil lawsuit and this is im-portant. You probably have heard or read about people suing other people for money and limit-ing lawsuits, that sort of thing. What I need to know from each of you is whether any of you believe before we even start that there should be laws limiting the amount of money someone can get in a medical malpractice case [or limit-ing the amount of money a family can recover where someone is suing for wrongful death, etc.]. Should we have laws that arbitrarily limit the amount of money a jury can award?

If someone says yes, you MUST follow up with something like this: How many of you agree with what Mr. X just said, [for example] that there are too many lawsuits asking for too much money that create an incentive to try to get money from someone else? How many agree with that general sentiment?

18 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

Some will agree, so you have to go further: For those of you who think there are too many frivolous lawsuits and too much money, would each of you promise that if you are selected as a juror and you believe at the end of this case that this case is frivolous, you will award no money? Would you agree with that, and would you agree to treat each side the same in that regard?

You may think this is a ridiculous/gutsy/stupid question, but it sets up the following:

• You know very little about this case and you know nothing (very little) about the dam-ages, and I’m going to tell you that at the end of the case we are going to ask for an award of millions of dollars. So, I need to know: Is there anyone, without hearing anything at all about the plaintiff (or the family) who has in your own mind a preset limit in this case above which you could not go, without knowing a single thing about this case and the family? Because we talked about you think there should be limits, so my honest question to you is: In your own mind, do you have a pre-set limit that, based upon maybe things you have heard in the press, you think is a limit in your own mind before you’ve even started the case?

• Would each of you promise me to not make any sort of decision about either we win or they win or how much money until you have heard the whole case, until you’ve heard the judge tell you what the law is and you’ve heard the argu-ments of the case? Can we have that promise from you?

• If you find for the plaintiff, the patient, and be-lieve she suffered substantial damages, do you have a problem returning a monetary award?

• And in that monetary award, before you delib-erate, the judge will instruct you that an injured person’s damages can include not only the medical bills and the lost wages but compensa-tion for things like scarring, mental anguish, psychological problems, disfigurement, that type of thing. Does anyone have a problem or want to limit damages or the award for those types of items?

For however many jurors there are who express some concern about awarding substan-tial monetary damages, you must follow up and get them to express the limits they would impose, think are fair, etc.

Wrap upAfter you have finished with your questions, ask

whether anyone has thought about the questions you have asked and wished they had raised their hand with a response. If so, they can do it now. Also ask if they have thought of anything they would like to add to an answer they gave. You may be surprised by what you hear at what you thought was the end of your questions.

What to do with all the “interesting” responses you got

Whenever you get an interesting answer to one of your questions (that is, an answer that is important to you), next say, “Tell me more about that.” You want these jurors to talk, so do not run from their answers.

Pay particular attention if there is a juror who has sat silent and has not answered even one question. Besides her being shy or having an agenda, what if she has a speech impediment that makes her feel intimidated when she speaks in front of strangers? Decide whether to ask the judge to question her out of hearing of the other panel members or to use one of your peremptory strikes or to ask the judge to strike her for cause.

Points to Ponder1. I have used all these questions at one time or

another, and I have a large collection of articles and transcripts and notes. However, I don’t auto-matically sit down the day before a trial and pick and choose. My collection of voir dire questions is ever evolving. As times change and juror attitudes change and research is done to teach us how jurors make decisions, my collection changes too.

2. If you have a question that you think might draw an objection, be ready to connect it to a case. We are allowed, in fact, commanded, to inquire about a prospective juror’s relation, interest, opinion and prejudice (see jury selection article), so have a case ready that forms the basis of your right to ask a particular series of questions.

3. If you have a question that you think might draw an objection, wait for the objection! Some-times it will not show up.

4. It is important to find out the judge’s approach to voir dire ahead of time. A judge’s admonishing you during your questioning with a “move on, coun-selor” does not make a great impression on the jury. If a judge announces that you have only 20 minutes for voir dire and you have questions that you know will take 45, whip out your case law (see jury selec-tion article) and make sure to make your record.

5. Do not waste time asking questions such as, “What kind of bumper stickers do you have on your car?” You do not want jurors to think you are wasting their time, and they will unless they can see a relationship between your question and the case. The question feels intrusive and offensive. If it is important to have this information, do some inves-tigation before the trial when you get the jury list. Plus, of course, you do not want to ask this question if you have a “20 minute” judge.

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Not every judge conducts jury selection the same way. You must find out how your judge operates. There are no “do overs” in jury selection, so be sure you get it right.

Will the judge allow challenges for cause on the spot or make you wait until both sides are finished with voir dire? If a particular juror has responded to a question in a way that makes it apparent she will likely be struck, will the judge allow questioning at the bench or otherwise outside the hearing of the other jurors so you could move to strike for cause immediately and bring another prospective juror onto the panel?

A judge’s procedure can be dictated by the type of case. Is it a high-profile case that has had a lot of publicity? A case that will have major impact on the community? One that will take many days to try or that involves very sensitive issues?

Whichever way the court uses to allow chal-lenges, make sure you know what it is. If you are unfamiliar with the particular judge’s procedures, call a VTLA colleague who practices in that court and ask how the judge conducts jury selection. If you do not know anyone who practices in that court, ask the courtroom deputy when you get there early on the morning of trial. You must get this right. There are no do-overs because you misunderstood the procedure.

The lawThe right to select a jury is governed by statute and

case law. Your trial notebook should have references to both so you are armed with support for challenging strikes and defending against challenges. Following this article are references to statutes and cases that may prove to be helpful. HINT: Read over them well before your voir dire and jury selection starts.

The areas of inquiry about which we have a right to inquire are set out in the Code and the Rules. The four areas which require that a prospective juror be struck for cause are relation, interest, opinion, and prejudice.

§8.01-358. Voir dire examination of persons called as jurors.

The court and counsel for either party shall have the right to examine under oath any person who is called as a juror therein and shall have the right to ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein; and the party objecting to any juror may

introduce any competent evidence in sup-port of the objection; and if it shall appear to the court that the juror does not stand indifferent in the cause, another shall be drawn or called and placed in his stead for the trial of that case. A juror, knowing anything relative to a fact in issue, shall disclose the same in open court. (Emphasis added)

Rule 3:A(14) Trial Jurors (a) Examination. – After the prospective jurors

are sworn on the voir dire, the court shall ques-tion them individually or collectively to determine whether anyone:

(1) Is related by blood or marriage to the accused or to a person against whom the alleged offense was committed;

(2) Is an officer, director, agent or employee of the accused;

(3) Has any interest in the trial or the out-come of the case;

(4) Has acquired any information about the alleged offense or the accused from the news media or other sources and, if so, whether such information would affect his impartiality in the case;

(5) Has expressed or formed any opinion as to the guilt or innocence of the accused;

(6) Has a bias or prejudice against the Com-monwealth or the accused; or

(7) Has any reason to believe he might not give a fair and impartial trial to the Com-monwealth and the accused based solely on the law and the evidence.

Thereafter, the court, and counsel as of right, may examine on oath any prospective juror and ask any question relevant to his qualifications as an impar-tial juror. A party objecting to a juror may introduce competent evidence in support of the objection.

(b) Challenge for Cause. – The court, on its own motion or following a challenge for cause, may excuse a prospective juror if it appears he is not qualified, and another shall be drawn or called and placed in his stead for the trial of that case.

Per Se Disqualification for CauseThere are very few instances where a venireman

can be per se disqualified because of his or her status.

Current clients of counsel for parties in the case. Cantrell v. Crews, 259 Va. 47, 523 S.E.2d 502 (2000); City of Virginia Beach v. Giant Square Shopping Ctr. Co., 255 Va. 467, 498 S.E.2d 917(1998).

Jury selectionHow to deselect the jurors who can kill your case

Jury Selectionby Sandra R

ohrstaff

20 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

Juror’s brother would appear as witness to the crime scene in his capacity as a police officer. Barrett v. Commonwealth, 262 Va. 823, 553 S.E.2d 731 (2001).

Juror was long-time stockholder in defendant corporation. Roberts v. CSX Transp., Inc., 279 Va. 111, 688 S.E.2d 178 (2010).

Reversible error for court to refuse to strike a per se disqualified juror for cause, thus forcing a litigant to use a peremptory strike to remove a venireman who is not “free from exception.” The statutory right to have a jury drawn from a panel free from excep-tion, §8.01-357, is fundamental. Roberts v. CSX Transp., Inc., 279 Va. 111, 688 S.E.2d 178 (2010).

But no per se disqualification in the following cases:

Based on group membership or the fact that ju-ror’s family member was a victim of violent crime. Stockton v. Commonwealth, 241 Va. 291, 402 S.E.2d 196 (1991).

Cashiers not disqualified per se when victim was a cashier. Mackall v. Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988).

Leasor or owner of oyster grounds not disqualified per se when crime was stealing oysters. Melvin v. Commonwealth, 202 Va. 511, 118 S.E.2d 679 (1961).

Sharecroppers not disqualified per se when de-fendant was a sharecropper. Waller v. Commwealth, 178 Va. 294, 16 S.E.2d 808 (1941).

Setting up strikes for causeIf there is a prospective juror who has exhibited

a strong bias against you, do not fear. Help him get himself off the jury. Be nice. Thank him for stating his position. Do not try to change the prospect’s mind. (It cannot be done in this setting. Period.) Do not be afraid that comments by one juror will “poi-son” the minds of other jurors. It cannot be done in this setting, either. Whatever poisoning there is has already occurred, long before you and they walked into the courthouse.

In fact, you want to be so welcoming of the com-ment that you create an atmosphere for others to express strong opinions against you. Why? Because you want everyone with strong biases against you to go home without sitting as jurors on your case.

Following is a technique using a simple metaphor that illustrates the point.1

Step 1. Tossing out the BaitWho thinks:

• Our civil justice system is broken.• People should take responsibility for them-

selves after an accident.• People shouldn’t sue for accidents.• It is unfair to enter a money judgment against

a person who caused an accident.• Only people who intentionally cause an ac-

cident should be sued.• Injured people have a victim mentality.• The defendant is the real victim for being sued.

• The burden of proof should be beyond a rea-sonable doubt in a civil case.

• People should not receive money rewards for injuries.

Step 2. Generating more nibbles• Thank you.• I respect your opinion.• Who agrees with Juror X?

Step 3. Getting on the hook• Why do you feel that way?• How does it make you feel when you hear

about . . .?• Who agrees with that statement?• Who disagrees?

Step 4. Securing the hook• How strongly do you feel about this?• Do you stand up for your personal beliefs?• If the judge says one thing, but you believe

justice can only be done if you vote your conscience, will you do what the judge says, or will you do what you believe to be right?

Step 5. Landing the fish• In this case you will be asked to decide the

issue of ______________.• Given your deeply held beliefs, am I correct

that you would not be a juror who could sit on this jury and apply the law told to you by the judge, if that law goes against your personal principles?

• Your Honor, the plaintiff challenges Juror X for cause.

How can a prospective juror be rehabilitated?

Jurors often will respond to questions in ways that show they lean one way or the other. Counsel and courts frequently ask follow up questions to try to “rehabilitate” the prospective juror. You may have heard questions such as this from the bench: “Mr. X, can you put your feelings aside and decide this case on the evidence and follow the court’s in-structions?” It takes a brave juror to say, “No, Your Honor, I cannot put my strong prejudices aside and follow the law.” Most people want to say the right thing and will give the expected answer: “Yes, Your Honor.”

Basically, clarification is proper; rehabilitation is not. Here is what the Virginia Court of Appeals has said on the matter.

A trial judge who actively seeks to rehabilitate a prospective juror may unconsciously become an advocate for the juror’s impartiality. McGill v. Com-

1. The fishing metaphor is taken from “Voir Dire,” Volume 1 Issue 8, December 2010, written by Karen Koehler, a Past President of the Washington State Association for Justice. Used with permission.

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3. Gut reactions are taken seriously by the Supreme Court of Virginia. In Roberts, supra, the Court expressly found prejudice in the trial court’s denial of a motion to strike for cause because the litigant was “denied the opportunity to act on his or her intuition and subjective feelings about venirepersons by having to prematurely exhaust his or her peremptory challenges to rid the panel of those who should have been struck as ineligible for implied bias.” Roberts, 279 Va. at 117, 688 S.E.2d at 182, citing Kusek v. Burlington N.R.R., 552 N.W.2d 778, 783-84 (Neb.Ct.App. 1996).

2. Included at the end of this article are two types of forms used by other lawyers and my firm to record information gleaned from jury information provided by the clerk and our own investigation. Copy one of these or make up your own. Just be sure it is simple. Shuffling dozens of pieces of paper at counsel table during voir dire and jury selection is inefficient during the heat of the moment and, more importantly, leaves a bad impression on the jury.

monwealth, 10 Va.App. 237, 242, 391 S.E.2d 597, 600 (1990).

Merely giving “expected answers to leading questions” does not rehabilitate a prospective juror. Martin v. Commonwealth, 221 Va. 436, 444, 271 S.E.2d 123, 129 (1980).

Proof of a prospective juror’s impartiality “should come from him and not be based on his mere assent to persuasive suggestions.” Breeden v. Commonwealth, 217 Va. 297, 300, 227 S.E.2d 734, 736 (1976) (quoting Parsons v. Commonwealth, 138 Va. 764, 773, 121 S.E. 68, 70 (1924)).

When asked by the court, a suggestive question produces an even more unreliable response. See Foley v. Commonwealth, 8 Va. App. 149, 160, 379 S.E.2d 915, 921 (1989).

A juror’s desire to “say the right thing” or to please the authoritative figure of the judge, if encouraged, creates doubt about the candor of the juror’s responses. McGill v. Commonwealth, 10 Va.App. 237, 242, 391 S.E.2d 597, 600 (1990).

Challenges to peremptory strikesSince Batson (Batson v. Kentucky, 476 U.S. 79

(1986)) and its progeny, a party’s peremptory strikes are subject to judicial scrutiny to the extent such strikes implicate the Equal Protection Clause. Be prepared to make a Batson challenge when neces-sary and to defend against one. A Batson challenge involves three steps:

1. Defendant makes a prima facie showing that the prosecutor has exercised peremp-tory challenges on the basis of race. If the showing has been made, then ...2. ...the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. 3. The trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.

James v. Commonwealth, 247 Va. 459, 442 S.E.2d 396, 461-62, 442 S.E.2d 396, 398 (1994). See Taitano v. Commonwealth, 4 Va.App. 342, 346-47, 358 S.E.2d 590, 592 (1991).

Batson has been extended to gender. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

Peremptory strikesWhen it gets right down to it, how do you decide

how to use your peremptory strikes?Use all the tools you can think of to find out as

much as you can about the venirepersons. There are many online sites that have information about people (you may be surprised at what you find online about yourself). People are on social media sites. All that information is available to you.

Have someone with you at trial to watch and lis-

ten during voir dire. You will miss some signals you get, so have someone there to do it for you. Do not, however, assign this task to your client.2

Once you have all the outward information you can get from the results of your fact gathering research and the answers to the questions asked, sometimes it just boils down to your gut reaction to a particular prospect.3

If someone has stayed closed up during the entire process (with arms and legs crossed and sitting side-ways with a scowl on her face, for instance), she has given you plenty of information about her strong desire not to be sitting on this jury. Think about it: Do you really want someone like that on your jury? She could very well turn out to be the foreperson!

Consider excluding prospective jurors who have made clear their strong negative viewpoints on is-sues important to your case or who have displayed the following characteristics:

• Uncomfortable with core issues the jury must decide

• Lack of compassion• Disrepectful• Will not meet your eye• Closed off body language • Hostility

What do you do if your voir dire has revealed so many prospective jurors with strong prejudices that you have to leave someone on the panel? First, argue for strikes for cause so you do not have to use a peremptory strike. However, if your arguments are denied, remove the possible worst offenders first.

Sometimes, you will have been handed a panel that looks great; sometimes, you will wonder what planet these folks live on; sometimes, you will not have a clue about most of them, even after your excellent voir dire. But using the tools you have and doing your homework will give you the best chance to get a jury that will be open to hearing your evi-dence and giving your client a fair trial.

Sandra M. Rohrstaff is running her own law practice in Alexandria. She is a past president of VTLA, member of the Boyd Graves Confer-ence, faculty member of the Virginia College of Trial Advocacy, past president of the Alexandria Bar As-sociation Foundation and of the Northern Virginia Chapter of the Virginia Women’s Attorneys Association. Mrs. Rohrstaff is an active community and professional volunteer, working in homeless shelters, teaching English to adult immi-grants, and serving as a guardian for indigent adults. She also served as a volunteer lawyer for Trial Lawyers Care following the 9/11 ter-rorist attacks.A graduate of the University of Texas at Austin, Mrs. Rohrstaff earned her J.D. from the Catholic University of America Columbus School of Law in Wash-ington, DC.

www.rohrstafflaw.com

22 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

Sample Voir Dire Chart

reprinted from Real Justice for Real People, “Voir Dire”, Vol. 1 Iss. 8, Dec. 2010, by Karen Koehler

The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011 23

Sample Jury Profile Chart

24 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

Virginia law governing jury selectionThis listing of caselaw is excerpted from a May 2009 presentation to the Judicial Conference of Virginia, titled “Managing Jury Selection,” and is reprinted here with permission. Members of the panel in this presentation were The Honorable Lisa Kemler, moderator; The Honorable Rossie D. Alston, Jr., The Honorable Dennis L. Hupp, and The Honorable Stephen C. Mahan.

I. Civil Cases

A. Right to Trial by Jury 1. U.S. Constitution, Amendment 7 2. Virginia Constitution, Article 1, Secction 11 3. §8.01-336(A). Jury trial of right 4. §8.01-336(B). Waiver of jury trial 5. §8.01-336(C). Court-ordered jury trial 6. §8.01-336(D). Trial by jury of plea in equity 7. §8.01-336(E). Suit on an equitable claim

B. Number of Jurors §8.01-359(A) and (D). Numbers of jurors in civil cases

C. Qualification for Jury Service §8.01-337. Who liable to serve as jurors

D. Disqualification for Jury Service 1. §8.01-338. Who disqualified 2. §8.01-340. No person to serve who has case at that term

E. Exemption from Jury Service 1. §8.01-341. Who are exempt from jury service 2. §8.01-341.1. Exemptions from jury service upon request 3. §8.01-341.2. Deferral or limitation of jury service for particular occupational inconvenience 4. §8.01-342. Restrictions on amount of jury service permitted

F. Jury Selection 1. §8.01-343. Appoiontment of jury commissioners 2. §8.01-344. Notification of jury commissioners; their oath 3. §8.01-345. Lists of qualified persons to be prepared by jury commissioners; random selection process a. The composition of the jury is a democratic in-

stitution, representative of all qualified classes of people, not just the most intelligent, most wealthy and most successful, or the least intelligent, least wealthy or least successful. Witcher v. Peyton, 405 F.2d 725, 727 (4th Cir. 1969) (quoting Fay v. New York, 332 U.S. 261,299-300 (1947).

b. Prima facie case of racial discrimination not shown. Moats v. Commonwealth, 12 Va. App. 349,404 S.E.2d 244 (1991).

4. §8.01-346. Lists to be delivered to clerk and safely kept by him; addition and removal of names a. No constitutional right to copies of the jury lists

except to parties. Archer v. Mayes, 213 Va. 633, 640-41, 194 S.E.2d 707, 712 (1973).

5. §8.01-347. How names put in jury box 6. §8.01-348. How names of jurors drawn from box

7. §8.01-349. Notations on ballots drawn; return to box; when such ballots may be drawn again 8. §8.01-350.1. Selection of jurors by mechanical or electronic techniques for the term of court 9. §8.01-352. Objections to irregularities in jury lists or for legal disability; effect thereof a. “[W]here the cause of challenge is unknown at

the time the juror is elected and sworn, and which could not have been discovered by the exercise of ordinary diligence, it will not be sufficient ground for a new trial unless it is made to appear that the parties suffered injuries from the fact that such juror served in the trial of the case.” Yellow Cab v. Henderson, 178 Va. 207,221, 16 S.E.2d 389,396 (1941) (quoting Doyle v. Commonwealth, 100 Va. 808,813,40 S.E. 925, 926 (1902)).

10. §8.01-353. Notice to jurors; making copy of jury panel available to counsel; objection to notice a. It has been declared reversible error for the trial

court to refuse to give the defendant access to the master jury list for the purpose of determining whether the jury selection procedures required by law and by the federal and state constitutions were complied with in selecting a jury to try him. Eccles v. Commonwealth, 212 Va. 679, 187 S.E.2d 207 (1972).

11. §8.01-354. “Writ of venire facias” defined 12. §8.01-355. Jurors on list to be used for trial of cases during term; discharge or dispensing of jurors; drawing additional jurors 13. §8.01-357. Selection of jury panel 14. §8.01-358. Voir dire examination of persons called as jurors a. Voir Dire Examination If an answer to a question propounded during

voir dire would disclose or clearly lead to the disclosure of the statutory factors of relationship, interest, opinion or prejudice, then it must be allowed. Questions that go beyond this standard are entirely within the discretion of the court. Le Vasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983).

A party has no right to ask any question he wishes or to extend voir dire ad infinitum. The trial court retains the discretion to determine when the parties have had sufficient opportunity to fully ascertain whether prospective jurors “stand indifferent to the cause.” Le Vasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983).

See also Virginia Supreme Court Rule 3(A):14 for list of questions that are not permitted.

The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011 25

b. Challenge for Cause (1) See Black’s Law Dictionary 230 (6th Edition) 1990 (2) Grounds i. Whether a panel member’s answers during

voir dire indicate to the court something that would prevent or substantially impair his abilities to perform his duties. Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 (1990).

ii. A juror who holds a preconceived view that is inconsistent with an ability to give an accused a fair and impartial trial, or who persists in a misapprehension of law that will render him incapable of abid-ing the court’s instructions and applying the law, must be excluded for cause.” Sizemore v. Commonwealth, 11 Va. App. 208, 211, 397 S. E.2d 408,410 (1968).

iii. A prospective juror who has any inter-est in the case, is related to a party or has expressed or formed an opinion or is sen-sible of any bias or prejudice is excluded by law. Richardson v. Planters Bank of Farmville, 94 Va. 130, 134,26 S.E. 413 (1896).

iv. “Per se disqualification of veniremen is not favored. Mere interest in the subject matter of a prosecution does not, per se, require that a venireman be set aside for cause.” Webb v. Commonwealth, 11 Va. App. 220, 222, 397 S.E.2d 539,540 (1990).

v. Common law rule that a juror is not disqualified by the fact that he is related to one of the counsel in the case prevails in Virginia. Petcosky v. Bowman, 197 Va. 240,89 S.E.2d 4 (1955).

vi. “A prospective juror is not subject to auto-matic exclusion because of an association with law enforcement personnel, provided the juror has no knowledge of the facts of the case and demonstrates impartiality toward the parties.” Clozza v. Common-wealth, 228 Va. 124, 129,321 S.E.2d 273, 276 (1984).

vii. “Jurors are not required to be ‘totally ignorant of the facts and issues involved [in a case].’” Charlottesville Music Cen-ter, Inc., v. McCray, 215 Va. 31, 38, 205 S.E.2d 674, 679 (1974) (quoting Green-field v. Commonwealth, 214 Va. 710, 717,204 S.E.2d 414, 420 (1974).

viii. “[T]he trend of modern decision has been to limit rather than to extend the dis-qualification of jurors by reason of mere opinion. . . If the juror has beforehand formed a decided, substantial or fixed opinion as to the guilt or innocence of one of the parties, no matter upon what ground

it was formed, he is incompetent; but if . . . the court is satisfied from an examina-tion of the prospective juror, on his voir dire or otherwise, that he can render a fair and impartial decision according to the law and the evidence, without bias or prejudice, he is not disqualified.” Temple v. Moses, 175 Va. 320,337, 8 S.E.2d 262, 268 (1940).

(3) Use of Challenge i. If it appears that a juror does not stand indifferent to the cause, another shall be drawn or called and placed in his stead. Salina v. Commonwealth, 217 Va. 92, 93, 225 S.E.2d 199, 200 (1976). ii. “Where ... jurors are examined in detail both by counsel and by the judge, the rule that a judge’s judgment should be given weight applies with particular force. He, better than anyone else, can gauge their candor and their purpose to give fair judgment on the evidence.” Ballard v. Commonwealth, 156 Va. 980, 1000, 159 S.E.222, 229 (1931). 15. §8.01-359. How jurors selected from panel. a. Peremptory Challenge The right of peremptory challenge comes from

the common law with the right of trial by jury itself and has always been held essential to the fairness of trialby jury. Cudjo v. Commonwealth, 23 Va.App. 193, 475 S.E.2d 821 (1996).

b. Batson Challenges (1) Batson doctrine applies to both criminal

and civil litigation, potential jurors and all litigants. Georgia v. McCollum, 505 U.S. 42 (1992).

(2) Sets out requirements that defendant must show to make prima facie case that prosecu-tor used peremptory challenges to remove jurors of defendant’s race. Burden then shifts to prosecution to explain adequately the racial exclusion. Taitano v. Commonwealth, 4 Va. App. 342, 346, 358 S.E.2d 590, 592 (1987) (citing Batson v. Kentucky, 476 U.S. 79 (1986).

(3) General assertions by the Commonwealth are not enough. The Commonwealth attorney must articulate a neutral explanation related to the particular case to be tried. Taitano v. Com-monwealth, 4 Va. App. 342,347,358 S.E.2d 590, 592 (1991).

(4) The Commonwealth attorney must provide nonracial, credible reasons for using its peremptory challenges to strike members of the defendant’s race from the jury. Winfield v. Commonwealth, 12 Va. App. 446, 451, 404 S.E.2d 398, 401 (1991).

(5) Extension of Batson to gender. All persons have the right not to be excluded

summarily from the opportunity to serve on a

26 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

jury because of discriminatory or stereotypi-cal presumptions that that reflect and reinforce patterns of historical discrimination. J.E.B. v. Alabama , ex rel. T.B., 511 U.S. 127, 141-42 (1994).

(6) Standard of Review Clearly erroneous. Robertson v. Common- wealth, 18 Va. App. 635, 639,445 S.E.2d 713 (1994). 16. §8.01-360. Additional jurors when trial likely to be protracted. 17. §8.01-361. New juror may be sworn in place of one disabled; when court may discharge jury. 18. §8.01-362. Special juries.

G. Foreign Juries §8.01-363. When impartial jury cannot be obtained locally.

II. Criminal Cases

A. Generally 1. §19.2-260. Provisions of §8.01 apply except as provided

B. Right to a jury trial 1. U.S. Constitution, Amendment 6 2. Virginia Constitution, Article I, Section 8 3. §19.2-257. Trial without jury in felony cases. 4. §19.2-258. Trial of misdemeanors by court without jury; failure to appear deemed waiver of jury. 5. §19.2-258.1. Trial of traffic infractions. 6. §19.2-262(A). Waiver of jury trial.

C. Composition of Jury 1. Number of jurors a. §19.2-262(B). Numbers of jurors in criminal

cases. 2. Qualification for Jury Service a. §19.2-260. Provisions of 8.01 apply except as

provided. b. §19.2-261. Charging grand jury in presence of

person selected as juror. 3. Examination of Jurors by Court a. Rules 3:A (14). Trial Jurors 4. Challenges for Cause a. When jurors have been carefully examined on

their voir dire and it has been shown that they are in every respect fair and impartial, and can give an accused a fair trial on the merits, they are not disqualified to sit by the fact that at another time and on entirely different evidence they have been compelled as jurors to convict him of an entirely different offense in no way connected with the charge under investigation. Buford v. Common-wealth, 132 Va. 512, 515, 110 S.E. 428,429 (1922).

b. The proof that a juror is impartial must emanate from the juror himself. Boblett v. Commonwealth, 10 Va. App. 640,648 (Va. Ct. App. 1990) (citing Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 389, 349 S.E.2d 903,907 (1986)

c. Virginia has declined to adopt a rule automati-

cally disqualifying from jury service any juror who has previously heard a key witness testify in an unrelated case. McGann v. Commonwealth, 15 Va. App. 448, 424 S.E.2d 706 (1992).

d. “[W]hen a venireman knows of an accused’s pre-vious conviction of the same offense for which he is being retried, the venireman cannot qualify as a juror in the new trial.” Barker v. Commonwealth, 230 Va. 370,275,337 S.E.2d 729, 733 (1985).

e. “[I]n any criminal case an accused has a right to inquire whether racial prejudice precludes any juror from reaching a fair and impartial verdict.” United States v. Gore, 435 F.2d 1110, 1111 (4th Cir. 1970)(citing Aldridge v. United States, 283 U.S. 308 (1931 )).

f. “Once a prospective juror has declared that he or she expects a defendant to produce evidence of his innocence, before that juror may be properly seated, the court must make sufficient inquiry to ascertain that the preconceived viewpoint is not such a firmly held misconception that it prevents the juror from applying the law of the case. When a juror has stated that he or she would give adverse consideration to a defendant’s failure to produce evidence of his innocence, the prospec-tive juror is not qualified until that juror specifi-cally and affirmatively states that he or she can set aside that view and hear and determine the case according to the law.” Sizemore v. Com-monwealth, 11 Va. App. 208, 214, 397 S.E.2d 408,411-12 (1968).

5. Racial Composition a. A jury made of members of different races is not

essential to the equal protection of the laws. The right to it is not given by any law, nor is it guaran-teed by the fourteenth amendment. See Patterson v. Commonwealth, 139 Va. 589, 123 S.E. 657 (1924); Martin v. Texas, 200 U.S. 316 (1906).

b. A defendant is not entitled to have members of his race on the jury which tries him. Brown v. Commonwealth, 212 Va. 515, 184 S.E.2d . 786 (1971).

c. “Jurors should be selected as individuals, on the basis of individual qualifications, and not as members of a race. Proportional representa-tion of race is not a constitutional requisite. The Constitution requires only a fair jury, selected without regard to race. “An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.” Bailey v. Commonwealth, 191 Va. 510, 520, 62 S.E.2d 28,32-33 (1950) (citing Cassell v. Texas, 339 U.S. 282,287 (1950)) (internal quotations omitted).

D. Jury Selection 1. §19.2-262. How jurors selected from panel. a. “[Virginia Code §19.2-262] provides a party ab-

solute discretion in striking a specified number of the venire and contains no mechanism for the trial

The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011 27

court to impair or interfere with a litigant’s deci-sions in the process. Within the last decade, how-ever, the peremptory nature of the “peremptory” challenge has changed. Batson and its progeny hold that litigants no longer have an absolute right to a “peremptory” strike. Rather, the exercise of peremptory challenges is subject to judicial scru-tiny to the extent such strikes implicate the Equal Protection Clause. Cudjo v. Commonwealth, 23 Va. App. 193,203,475 S.E.2d 821, 825 (1996) (internal citations omitted).

E. Foreign Juries 1. §8.01-363. When impartial jury cannot be obtained locally. a. “A court may refuse to summon a jury from

another county until an ineffectual effort has been made to obtain an impartial jury from the county in which the trial is to take place.” Ascher v. Com-monwealth, 12 Va. App. 1105,408 S.E.2d 906 (1991) (quoting Coppola v. Commonwealth, 220 Va. 243, 248, 257 S.E.2d 797,801 (1979)).

b. When summoning a jury from another jurisdic-tion, the trial court must have large discretion, and the question as to whether the jury should be summoned from abroad is for the trial court to determine. Newberry v. Commonwealth, 192 Va. 819,66 S.E.2d 841 (1951).

c. The burden of proof is on the accused, on a mo-tion for a jury from another county, to show that the facts and circumstances are such that a fair trial cannot be had. See generally, Wood v. Com-monwealth, 146 Va. 296, 135 S.E. 895 (1926); Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406 (1962).

d. “The law presumes that a defendant can get a fair and impartial trial in the county in which the offense was committed. Hence, in order to over-come this presumption the burden is upon the one requesting a change of venue to show clearly that there is such a widespread feeling of prejudice on the part of the citizens of the county as will be reasonably certain to prevent a fair and impartial trial.” Rees v. Commonwealth, 203 Va. 850, 860, 127 S.E.2d 406,413 (1962) (quoting Farrow v. Commonwealth, 197 Va. 353, 355, 89 S.E.2d 312, 313 (1955)).

F. Capital Cases 1. §19.2-264.3. Procedure for trial by jury. 2. Jurors’ position on capital punishment a. “A prospective juror may be excluded for cause if

his views on capital punishment ‘would prevent or substantially impair the performance of his du-ties as a juror in accordance with his instructions and his oath.’” Le Vasseur v. Commonwealth, 225 Va. App. 564, 584, 304 S.E.2d 644,654 (1983) (quoting Adams v. Texas, 448 U.S. 38,45 (1980).

b. “The Supreme Court of Virginia has held that a juror who is irrevocably committed to vote against the imposition of the death penalty may

be excluded for cause.” Le Vasseur v. Common-wealth, 225 Va. App. 564, 584, 304 S.E.2d 644, 654 (1983) (citing Coppola v. Commonwealth, 220 Va. 243, 250, 257 S.E.2d 797,802 (1979), cert. denied, 444 U.S. 1103 (1980).

c. “Whether a juror is thus ‘irrevocably commit-ted’ [to his opposition of the death penalty], is a mixed question of law and fact for determination by the trial court.” Le Vasseur v. Commonwealth, 225 Va. App. 564, 584, 304 S.E.2d 644,654-55 (1983).

d. “As fact-finder, the trial court must weigh the meaning of the answers given in light of the phrasing of the questions posed, the inflections, tone, and tenor of the dialogue, and the general demeanor of the prospective juror. We are aware that, while the words employed may, when tran-scribed and read in retrospect, appear ambivalent, the judge who heard them uttered was uniquely positioned to assess their ultimate import.” Le Vasseur v. Commonwealth, 225 Va. App. 564, 584,304 S.E.2d 644, 655 (1983) (quoting Smith v. Commonwealth, 219 Va. 455, 464-65, 248 S.E.2d 135, 141 (1978), cert. denied, 441 U.S. 967 (1979).

e. “The trial judge must satisfy himself that the juror’s commitment against the death penalty is ‘unmistakably clear.’ This finding of fact cannot be disturbed on appeal unless we can say, upon consideration of the voir dire as a whole, that it was erroneous. Le Vasseur v. Commonwealth, 225 Va. App. 564, 584, 304 S.E.2d 644,655 (1983) (quoting Smith v. Commonwealth, 219 Va. 455,465,248 S.E.2d 135, 141 (1978), cert. denied, 441 U.S. 967 (1979).

28 The Journal of the Virginia Trial Lawyers Association, Volume 22 Number 4, 2011

AdditionalResources

Additional resourcesThe Culture Code: An Ingenious Way to Understand Why People Around the World Live and Buy • as They Do, by Clotaire Rapaille, a psychoanalyst and marketing consultant. Why is this book on this list? Because trial lawyers need tools to help them understand the way people (jurors) think and perceive.Blue’s Guide to Jury Selectio• n, by Lisa A. Blue and David B. Hirschhorn, AAJ PressJurywork: Systematic Techniques• , by National Jury Project, West Publishing Co. This is an expen-sive publication, but it should be in a law school library (be sure it’s the most up-to-date version). Reptile: The 2009 Manual of the Plaintiff’s Revolutio• n by David Ball and Don Keenan Rules of the Road: A Plaintiff Lawyer’s Guide to Proving Liabilit• y by Rick Friedman and Patrick Malone“Motions • in Limine, Voir Dire and Jury Selection,” by Irvin V. Cantor, William B. Kilduff and David Ball, Handling an Automobile Negligence Case in Virginia, West Group with Virginia Trial Lawyers Association.

Articles from previous VTLA Journals, available for members at www.vtla.com:“• The Essentials of Voir Dire” by Nathan J.D. Veldhuis, Vol. 22, No. 1, 2010“• Voir Dire Techniques to Maximize Damage Recovery: A Primer” by Jeffrey T. Frederick, Ph.D., Vol. 21, No. 1, 2009“• Voir Dire: Talking with Each Potential Juror” by Sandra M Rohrstaff, Vol. 17, No. 2, 2005“• Tips for Understanding and Identifying Juror Bias” by Jeffrey T. Frederick, Ph.D., Vol. 11, No. 3, 1999“• Voir Dire: I know what questions to ask, but what do I do with the answers?” by Benjamin W. Glass III, Vol. 9, No. 4, 1997“• Some Reflections on Juror Questionnaires in Virginia” by J. Lloyd Snook, Vol. 8, No. 3, 1996“• Batson’s Impact Upon Jury Selection in Civil Cases” by Michael W. Lantz and Jason W. Konvicka, Vol. 8, No. 3, 1996“• Jury Attitudes and Their Perspectives” by The Honorable Jack B. Coulter, Vol. 8, No. 3, 1996

CLE outline materials, also available for members at www.vtla.com“• Effective Voir Dire in a Virginia Criminal Case” by David P. Baugh, 2008 VTLA Annual Criminal Law Seminar“• Advocacy in a Changing World: Bias and Manipulation in the Jury Box” by Gregory S. Cusi-mano, 2007 VTLA Annual Convention“• Story and Structure for Plaintiffs” by David Ball, Ph.D., 2007 VTLA Annual Convention“• Voir Dire in Criminal Cases, Jurors Say the Darndest Things” by Anthony Anderson, 2005 Crimi-nal Law CLE“• Reading the Play” by Colleen M. Quinn, 2005 VTLA Tort Law Playbook“• Selecting a Jury and the Psychology of Jurors: What they like, don’t like, and don’t care about” by The Honorable Samuel Johnston and The Honorable Kathleen MacKay, 2004 VTLA Solo & Small Firm Conference