LAW OF JURY SELECTION
Importance of
Attorney Conducted
Voir Dire
Attorney Conducted Voir Dire in a
Judge Controlled State
WHERE THINGS
STAND TODAY
A. MOST STATES LET THE
ATTORNEYS DO IT…
…OR THEY AT
LEAST ALLOW
ATTORNEYS TO
SUPPLEMENT
THE COURT’S
VOIR DIRE
B. A FEW FEDERAL COURTS
FAVOR ATTORNEYS DOING IT
“Voir dire examination in both civil and
criminal cases has little meaning if it is not
conducted by counsel for the parties.”
- United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977)
C. JUDGES EVERYWHERE
HAVE DISCRETION
“[T]he manner and scope of the voir
dire examination lies within the
discretion of the trial court.”
- People v. Metcalfe, 202 Ill.2d 544 (2002).
D. MORE VOIR DIRE IS
SEEN AS IMPORTANT
“The trial judge permitted no inquiry designed to elicit
the venireperson’s attitudes toward the general nature
or specific facts of the case…. [A] trial judge’s desire
not to make the voir dire a big deal in a case that’s
only going to last a couple of days is clearly subsidiary
to his duty to impanel an impartial jury.”
-Art Press Ltd. v. Western Printing Machinery, 791 F.2d 616 (7th Cir. 1996)
Attorney Conducted Voir Dire in a
Judge Controlled State
SO HOW DO WE CONVINCE
JUDGES TO ALLOW THE ATTORNEYS
TO DO MORE?
Attorney Conducted Voir Dire in a
Judge Controlled State
I. WHAT JUDGES
CARE ABOUT
A. JUDGES CARE ABOUT
WHAT TIME IT TAKES
“A survey of 124 federal judges conducted by
the Federal Judicial Center… reported no
significant increase in jury selection times
between those judges who allowed attorney
conducted voir dire and those that did not.”
-Andreano, Voir Dire: New Research Challenges Old
Assumptions, 95 Ill. B.J. 474, 475 (Sept. 2007)
B. JUDGES CARE ABOUT
WHAT IT ALL COSTS
“The voters expressly found ‘that it is necessary
to reform [California] law as [those laws ensuring
attorneys have a right to participate in criminal
voir dire] have unnecessarily expanded the rights
of accused criminals… unnecessarily adding to the
costs of criminal cases.’”
- People v. Boulerice, 5 Cal.App.4th 463, 7 Cal.Rptr.2d 279 (1992)
C. JUDGES CARE ABOUT
JUROR PRIVACY
“While the parties have attorneys to
champion their rights, the court must
protect the Constitutional privacy
rights of the prospective juror.”
- People v. James, 304 Ill.App.3d 52 (2nd Dist. 1999)
D. JUDGES CARE ABOUT
ENSURING A FAIR TRIAL
“The trial judge is in the best position to
determine whether questions raised in voir
dire assure the presence of a fair and
impartial jury without amounting to a
prejudicial presentation of the evidence.”
- State v. Whitt, 2015 WL 1743093 (Mo.App. 2015)
Attorney Conducted Voir Dire in a
Judge Controlled State
II. WHAT ATTORNEYS
CARE ABOUT
A. ATTORNEYS CARE ABOUT
WHO THEIR JURORS ARE
“Voir dire should be embraced as the litigator’s
only opportunity to have a conversation with
the people who will decide the case. There will
be plenty of opportunities to talk to jurors, but
voir dire is the only chance to talk with them.”
-
Gilbert, Ollanick & Wenner, Overcoming Juror
Bias in Voir Dire, Trial Magazine (July 1997)
B. ATTORNEYS CARE ABOUT
GETTING INFORMATION
“We have… encouraged open-ended questioning.
We have strongly disapproved closed-ended
questions that predetermine answers or elicit
narrow yes-or-no responses. We have encouraged
…questions that will provide insight into a juror’s
views on a subject in controversy.”
- State v. Harris, 1998 WL 429915 (N.J. 1998)
C. ATTORNEYS CARE ABOUT
INDOCTRINATING JURORS
“[I]t may become obvious parties are trying to commit
the veniremembers about how they will take certain
types of evidence…. [A] bright line rule for
determining when a question constitutes [improper
indoctrination] is difficult due to the nature of the
issues involved [but such questions are not allowed].”
-Raby v. State, 970 S.W.2d 1 (Tex. App. 1998)
D. ATTORNEYS CARE ABOUT
WINNING THE CASE
“Of the many reasons that …may explain plaintiffs'
lower success rate in Massachusetts, Sylva focuses on
only one-the absence of attorney voir dire in
Massachusetts. Sylva does not… attempt to take into
account the multiple other variables that may also be
correlated with plaintiff success rates.”
- Sylva v. Anthony, 14 Mass.L.Rptr. 337 (Mass.Super. 2002)
Attorney Conducted Voir Dire in a
Judge Controlled State
III. WHAT JURORS
CARE ABOUT
A. JURORS CARE ABOUT
WHY THEY’RE HERE
“Prospective jurors must be engaged in a
dialogue about the …system, the procedural
safeguards built into the system …and the
importance of their service as jurors.”
-United
States v. Grace, 408 F.Supp.2d 998 (D.Mont. 2005)
B. JURORS CARE ABOUT
THEIR PRIVACY
“While the trial lawyer’s appetite for information
Concerning prospective jurors may be insatiable, the
burden is borne by [those] prospective jurors. As the
scope of inquiry during voir dire has relentlessly
expanded, resistance has been expressed by or on
behalf of prospective jurors. “
- U.S. v. Padilla-Valenzuela, 896 F. Supp. 968, 971 (D. Ariz. 1995)
C. JURORS CARE ABOUT
IMPRESSING THE JUDGE
“When the court asks all the questions, a prospective
juror is often influenced by social norms, providing
‘socially acceptable’ answers he or she believes the
judge wants to hear. Survey data shows jurors look
upon judges as important authority figures and are
reluctant to displease them.”
-Ron Matlon, Strategies for More Effective Voir Dire,
The Jury Expert (Aug. 20013).
D. JURORS CARE
ABOUT
WHAT TO DECIDE
“Some jurors make up their minds before the
trial begins, without conscious awareness of
their decisions. Identifying such jurors during
voir dire is imperative because the case may be
over for them before it begins, even though they
aren’t likely to acknowledge it.”
-Cusimano and Wenner, Selecting the Right Jury,
Lawyers USA (May 2009)
Attorney Conducted Voir Dire in a
Judge Controlled State
IV. WHAT ELSE YOU
SHOULD CARE ABOUT
A. YOU SHOULD CARE ABOUT
JURY QUESTIONNAIRES
“In the typical case, a written questionnaire works
a significant advantage in time only when the
prospective jurors’ written responses are made
under penalty of perjury and can substitute for
oral voir dire. This savings in time is not without a
cost. The court, the parties and their attorneys
lose the opportunity to observe demeanor….”
- U.S. v. Ruedlinger, 172 F.R.D. 453 (D. Kan. 1997)
B. YOU SHOULD CARE ABOUT
PRE-TRIAL CONFERENCES
“The salutary, indeed the desirable and efficacious,
purpose of a pretrial conference is to …determine
the triable issues, both factual and legal, and to
chart the course of the lawsuit accordingly….”
- Fortner v. City of Colorado Springs, 2012 WL 3834808 (D. Colo. 2012)
C. YOU SHOULD CARE ABOUT
KEEPING TOPICS RELEVANT
“Maryland is one of the few states in the country that does
not permit voir dire to inform the exercise of peremptory
challenges. It has long been the rule in Maryland that voir
dire is limited to the detection of bias sufficient to
challenge a prospective juror for cause and not to assist in
the exercise of peremptory challenges....”
-State v. Thomas, 369 Md. 202, 798 A.2d 566, 575 (2002)
(Raker, J., concurring)
D. YOU SHOULD CARE ABOUT
AVOIDING INDOCTRINATION
“The impression is inescapable that the aim of
counsel [in attorney-conducted voir dire] is no
longer exclusion of unfit or partial or biased jurors.
It has become the selection of a jury as favorable
to the party's point of view as indoctrination
through the medium of questions on assumed facts
and rules of law can accomplish.”
-State v. Howard, 192 N.J. Super. 571, 471 A.2d 796 (1983)
A. MORE OF WHAT’S
HAPPENING IN
MASSACHUSETTS
“In addition to whatever jury voir dire of the jury
venire is conducted by the court, the court shall
permit, upon the request of any party's attorney or a
self-represented party, the party's attorney or selfrepresented party to conduct an oral examination of
the prospective jurors at the discretion of the
court.”
-
-2014 Acts, Chap. 254, Section 2, Amending
Massachusetts Laws, Chap. 234, Section 28
LAW OF JURY SELECTION
Importance of
Attorney Conducted
Voir Dire