Voir dire, the legal term for questioning potential jurors during jury selection, is often the most important part of a trial—the part most likely to control the outcome. Unfortunately, it is also the most difficult for a lawyer to perform well. Worse, many lawyers routinely perform it without much preparation or care.
The goals of voir dire, we believe, are these:
- to identify and exclude from the jury persons who would not give the accused a fair trial
- to form a jury culture that respects key legal principles, such as the requirement to acquit if the prosecution does not prove guilt beyond a reasonable doubt
- to build the credibility of the lawyer defending the accused
Most lawyers, though, see voir dire as a chance to pre-sell their cases, a first chance to try to persuade the potential jurors that their side should win the trial. They therefore spend too much time talking and far too little time listening to how the potential jurors feel. Yet only by listening to potential jurors—and caring about them—can lawyers accomplish the proper goals of voir dire.
Our approach to jury selection comes from the Trial Lawyers College, where David Marshall learned it under the instruction of Gerry Spence, probably the greatest American trial lawyer of the past fifty years. The most important part of it is to speak honestly with prospective jurors and to encourage them to do the same.
Candid discussion during voir dire can lead to challenges for the lawyer who encouraged it. For example, a potential juror who accepts the invitation to speak honestly may say, “I think you’re trying to manipulate us.” In such an event, David must resist the urge to defend his integrity from this attack. Instead he must use the attack to stimulate further candid discussion with the jury pool. “Ms. Brown, I appreciate your honesty in telling me just how you feel.” Then to the jury pool at large, “Ms. Brown thinks I’m trying to manipulate you. How do others of you feel about that? Is what I’m doing some sort of lawyer’s trick?”
This is not really a technique. It is an entire attitude. We have found it is a winning attitude.
Another important part of our jury selection work is to submit questionnaires for potential jurors to complete in writing. We read the responses before voir dire. Then we are ready to zero in on possible bias.
Judges routinely allow only an hour or less for voir dire. Most judges, though, will allow far longer for voir dire in our cases—both because child abuse and some other special assault cases pose severe risks of juror bias, and because judges see that we use the time well to unearth that bias.