1:00-2:00 p.m.
How many times
have you spoken with jurors after a trial and been surprised by what they told
you? In particular, how many times have you had to smile and maintain your
composure as jurors tell you about something that played a major role forming
the verdict and you thought that factor was practically irrelevant?
I had that kind of
experience in the very first focus group I conducted as a trial consultant.
This was a criminal case in which aggravated assault had been alleged. I set up
the focus group the way I was trained. When the focus group members arrived,
they were given two documents. One document was a summary of the case from the
point of view of the prosecution. The other document was a summary of the case
from the point of view the defense.
I had been working
in the field of criminal psychology since 1985. I was an expert in violent
crime. So, I thought I had a pretty good idea how the focus group would
deliberate. I even thought I had a pretty good idea about the verdict they
would reach. Boy, was I wrong.
From the outset of deliberations,
the discussion took an odd turn. In plain English, I was shocked by the
deliberations. My mind was whirling as I silently asked focus group members:
"Why
are you focusing on that? That is not even relevant."
At other times I would silently
say,
"That is not what the evidence says.
Why are we even going down that path?"
Here is the lesson
I learned during that focus group and this lesson has been reaffirmed by every
focus group I have conducted since that time: jurors don't deliberate based on
facts and argument; jurors deliberate based on their perception of the facts
and arguments and it is the juror's belief system that accounts for the varying
way that jurors perceive facts and arguments.
The Trial Attorney
must take a psychological approach to conducting voir dire. The psychological
approach to voir dire is based upon psychological factors that are known to
impact how a juror reaches a verdict. So, let’s begin with a discussion of the
psychology of how a juror forms a verdict. Based upon the psychology of the
verdict, a process is proposed for identifying jurors whose belief system would
prevent them from a fair hearing of your case.
This presentation is from the
perspective of a criminal defense attorney who is involved in a case of alleged
child sexual abuse. The discussion and sample questions will be based upon this
case.
How a Juror Reaches a Verdict
In order to
understand how jurors reach a verdict, we will take a trip back in time, about
sixty years ago, to New York circa 1950. There you will meet an iconoclastic psychologist
named, Albert Ellis, who provides us with a cornerstone concept in the field of
psychology that is still used to today. He
offers us what are referred to as the ABCs of emotion (Ellis, 1957).
In the ABCs of
emotion, A stands for "activating event", or any event that might
happen in the environment. B refers to the individual's "belief
system". All events are filtered through a set of beliefs and based upon
those beliefs, the individual will have a resulting or "consequent emotion."
There is an important
implication to the ABCs of emotion that might be readily obvious but it is
fundamental to how a juror forms a verdict. The ABCs of emotion reveals that
events don't cause emotions; instead, our beliefs regarding the event cause the
emotion. Let's take a look at one recent event and it will be easy to show the
power of the belief system.
Consider for a moment our last
presidential election, in which Barack Obama was the victor. If events
determined how an individual felt, then the election of Barack Obama should
have made everyone feel the same way but it did not. In general, Democrats were happy with Mr.
Obama's election whereas Republicans were not.
Not the event, the
event was the same for both Democrats and Republicans. The difference was the
belief systems that filtered the event. Let's take what you just learned about the ABCs of emotion and apply it to the behavior of jurors. In the graphic below, it is easy to see the critical role the belief system plays in verdict formation.
The graphic above is the ABCs of emotions translated into a court setting. In this model, the activating events are the facts and arguments used when presenting the case. The juror belief system is the filter through which the facts and arguments must pass.
The
"Story" refers to the way that the juror uses her beliefs to organize
the facts and evidence. The story that
the juror tells hiself/herself about the case is the basis on which the juror
reaches a verdict.
Using what you
know about the ABCs of reaching a verdict, the task of voir dire might be
stated as, "Voir dire is the process of identifying jurors with beliefs
that prevent them from a fair hearing of your case."
How to Conduct Voir Dire
In the
psychological approach to conducting voir dire, voir dire is aimed at
identifying jurors whose beliefs prevent them from an open and fair hearing of
your case. The following is a method of conducting voir dire and with a little
modification it can serve the purpose of identifying supportive and harmful beliefs
held by jurors. The following is the recommended process for conducting voir
dire, with goal of identifying juror belief systems.
1.
Develop
voir dire questions for key evidence and themes.
2.
Develop
voir dire questions to uncover juror beliefs.
3.
Develop
voir dire questions regarding juror life experiences.
4.
Develop
voir dire questions regarding juror demographics.
Step One: Develop Voir Dire Questions for
Key Evidence and Themes
All attorneys and
trial consultants have developed their own methods for organizing evidence.
There is no right or wrong way to organize the evidence. If it works for you,
it is the right way to do it. Regardless
of how the evidence is organized, if you are going to take the psychological
approach to conducting voir dire, I would ask you to take one extra step after
you have your evidence organized: group or categorize the evidence into themes.
It is recommended that you have one primary theme and no more than three
subthemes.
I have been
involved in cases where the attorney took the approach of "throw it all
against the wall and see what sticks." On occasion, I have seen this work
but I don't think this approach is scientifically or psychologically sound.
Research in the area of cognitive psychology has revealed that the average
individual can keep three things in mind at one point in time. In other words,
the average individual can keep three things in working memory.
If you want to use
these scientific data to your advantage, you should organize your evidence so
you have one primary theme for your case and no more than three subthemes. You
might want to adopt the motto: If you present more than three themes, you have
presented nothing at all.
All that a juror
can take into the deliberation room are three themes; a juror cannot take ten
themes or arguments into the deliberation room.
Let's consider a
child sexual abuse case in which Mrs. Green accuses her ex-husband of sexually
abusing their three year old daughter and the allegations arose during their
bitter divorce. In this case, defense counsel's primary theme will be: The allegations were contrived by a vengeful
ex-spouse. The subthemes in the case could be as follows: (1) Children in the three to five year age range
are at risk for being induced to make a false outcry; (2) Mrs. Green has a history of using the
children to hurt Mr. Green; and (3) In the past, Mrs. Green has made false statements to the police and
child protective services.
Once you have your primary theme and three subthemes, you are ready to formulate your first set of voir dire questions. The questions you create should be designed to reveal juror beliefs about your evidence and themes. For example, take the first subtheme, "Children in the three to five year age range are at risk for being induced to make a false outcry." Your voir dire questions might look something like this:
Q: What
weight would you give to scientific research that says a child in the three to
five year old age range can be induced to make a false outcry of sexual abuse
about 45% of the time?
Q: What
weight would you give to scientific research that says a child is equally
likely to believe something happened when it actually happened or when she is told
by a parent it happened?
Of course, there
are many more questions that might be formulated than the two listed above. The
questions listed above serve as examples of the type of questions you could ask
regarding one of the subthemes in the hypothetical case about child sexual
abuse.
For each theme and
for each piece of key evidence, you want to develop voir dire questions that
will reveal relevant juror beliefs. Your questions should be designed to get
jurors talking. Once they are talking, you will begin to see the beliefs they
hold regarding the evidence and your themes.
A word of caution
is offered. You might instinctively want to avoid voir dire questions regarding
evidence that is harmful to your case. Don't do this. Don't avoid asking
questions about the potentially harmful topics you know are going to come up.
The reason for this is simple, you need identify jurors whose beliefs will be
supportive of the damning evidence. Once you have identified the juror whose
beliefs support harmful evidence, you can deselect that juror.
You have now
completed the first step of the voir dire process. You have written voir dire
questions regarding key evidence, your case theme and subthemes, and harmful
evidence. Now, you are ready to go to the next step in the process.
Step Two: Develop Voir Dire Questions that
Reveal Juror' Belief Systems
Belief system is defined as the totality of an
individual's values, attitudes, and opinions. When it comes to the matter of
rendering a verdict, nothing is more critical than the juror's belief system.
The juror's belief
system is the filter through which all evidence and argument must pass. The
juror will not deal directly with the evidence and argument when formulating a
verdict. The juror will deal with the story he tells himself about the case
information and the juror's story is based more on belief than fact.
Your job during
the second step of voir dire is to uncover information about each juror's
belief system. Once you uncover the juror's belief system, you should determine
if your client can get a fair hearing with that belief system in the
deliberation room.
There are two ways
to identify relevant juror beliefs. First, you can take a rational approach. In
the rational approach, you use reason and logic to deduce juror opinions that
are relevant to the case. Second you can take an empirical approach. In the
empirical approach, you identify relevant juror beliefs by use of the existing
scientific literature, or better still you use focus groups.
In order to
demonstrate the rational approach to uncovering juror beliefs, let's return to
the child sexual abuse case which was introduced when we discussed the first
step. Using logic and intuition, what beliefs do you believe would be helpful
or harmful to the defense in such a case? Consider the following:
·
Sexually Conservative – In our culture, sex is supposed to be
a private thing, so everybody will be a little shy about sexual matters but the
sexually conservative person is extraordinarily shy and might punish the
defendant with a guilty verdict for bringing sex out of the bedroom and into
the courtroom.
·
Strong Parenting Instinct – Individuals with a strong parenting
instinct might be overprotective towards children and thus inclined to begin
hearing evidence in a child sexual abuse case with a guilty verdict already in
mind.
·
Law and Order – Individuals who identify with law
enforcement and the courts would from the beginning of the trial be favorable
to the prosecution.
The list above is
not exhaustive of juror beliefs but it shows you the thought process you must
go through to identify relevant juror beliefs. Notice that the beliefs you most
want to identify are beliefs that favor your opponent. In the case of the
defense attorney preparing to defend Mr. Green, the goal is to identify
pro-prosecution beliefs. The reason for this is simple. The only tool you have
available to you during voir dire is deselection, so you need to spend the
precious little time that you do have determining who you need to deselect.
The second approach
to developing voir dire questions designed to uncover juror beliefs is the
empirical approach. There has been extensive psychological research regarding
the relationship of beliefs and juror verdict. It is beyond the scope of this
paper to review the entire body of research regarding juror beliefs. To give
you a flavor of the research, consider the following summary of the research
regarding three beliefs that have a tremendous impact on verdicts in civil and
criminal trials:
·
Authoritarianism - Authoritarianism is defined as a
desire for order, well defined rules, and reliance upon authority when making
decisions. Authoritarians have a strong belief in the legitimacy of
conventional authority. The research shows that authoritarian individuals tend
to convict and give harsher punishment than people who are low on
authoritarianism (Narby, Cutler & Moran, 1993). To really appreciate the
power of authoritarianism, consider the results of a thirty year old study that
showed that authoritarian individuals recall prosecution evidence more than
defense evidence (Garcia & Griffitt, 1978). The following are examples of
beliefs held by authoritarian individuals:
o
Obedience and respect for authority are
the most important virtues children should learn.
o
An insult to honor should always be
punished.
o
There is nothing lower than a person who
does not feel great love, gratitude and respect for his parents.
·
Locus of Control - Locus of control means location
of control. In the locus of control research, there are two locations for
control: internal and external. Individuals with external locus of control
believe that their actions matter little and what happens in their life is
largely the result of external factors, like fate, luck, or serendipity.
Individuals with internal locus of control believe that their personal
qualities, such as intelligence, perseverance, and so on, determine what
happens in their life.
You might think
something as abstract as locus of control would have no bearing on a verdict
but it does. The research shows that
persons with a strong internal locus of control are more likely to convict
because they view themselves as well as others as accountable for their own
actions. One research study having to do
with a drunk driving showed that individuals with strong internal locus of
control recommend more harsh punishment than individuals with external locus of
control. The following are some examples
of beliefs held by internal locus of control:
o
People's misfortunes are the result of
mistakes they make.
o
Capable people who fail to become leaders
have not taken advantage of their opportunities.
o
When I make plans I am almost always
certain I can make them work.
·
Belief in a Just World - If you believe that people get
what they deserve in life, you have a belief in a just world, i.e., good things
happen to good people and bad things happen to bad people. The research
regarding Belief in a Just World (BJW) is mixed. Some research has shown
persons with a strong BJW are more likely to convict but these same individuals
might be inclined to blame a rape victim or be less punitive towards a higher
status defendant. The following are some beliefs held by individuals with
strong just world beliefs:
o
I feel the world treats me fairly.
o
I believe that I get what I deserve.
o
I feel that I earn the rewards and
punishments I get.
As you can see
from the brief overview of the research, there is a wealth of scientific data
to guide the formulation of questions designed to uncover a juror's belief
system.
Step Three: Develop Voir Dire Questions
about Life Experiences
Juror decision-making
is shaped by beliefs and beliefs are shaped by life experiences. So, life
experience can be fruitful area of questioning during voir dire, if it is done
correctly.
If you want to use questions about
life experiences as a means to uncover juror beliefs, the first thing you must
do is identify those life experiences that you think would create relevant
juror beliefs. For example, in the sexual abuse case regarding Mr. Green, some
relevant life experiences might include the following:
·
Sexual abuse history - "Have you ever been sexually abused, sexually assaulted or
raped?" "Has someone close to you ever been sexually abused, sexually
assaulted or raped?"
·
Divorce - "If you
have gone through a divorce, was it a bitter divorce?" "Do you have
family or friends who were harmed during a bitter divorce?"
·
Child rearing - "If you have raised children, have you ever seen them get confused
about facts or things that happened to them?" "If you have raised
children, have you ever seen them make up things to please one or both of the
parents?"
Taking a look at
the first two life experiences (sexual abuse and divorce), you probably
recognize how difficult it would be for prospective jurors to talk about those
things in public. Yet, those life experiences are critically important in a
sexual abuse case. If you know that you will be asking jurors about such
sensitive matters as sexual abuse and divorce you might try to avoid a public
discussion of these matters by use of supplemental jury questionnaire. If for
some reason you cannot use supplemental questionnaires, then you should attempt
to conduct individual voir dire on the sensitive topics.
Whether you are
assessing life experiences by means of questionnaire, individual voir dire, or
public voir dire, your goal is the same. You want to find out if a juror had
the relevant life experience. However, it is not enough to know if the juror
had that life experience. You must uncover the juror's beliefs about that life
experience.
A life experience
itself does not determine a verdict bias. Rather, the juror's beliefs about the
life experience determine what if any bias will exist. You must first ask who
has had the life experience and then you must follow-up with open-ended
questions that reveal the juror's beliefs about the life experience.
Step Four: Develop Voir Dire Questions
regarding Demographics
You don't have to wreck your voir
dire by over-reliance on demographics.
If you want to use demographics effectively, use demographics to probe prospective
jurors about beliefs:
·
Occupation - "Have you worked in a child welfare agency?" "Have you
worked in a women's shelter or family shelter?" "Have you ever worked
as an investigator for any governmental agency?”
·
Parent status - "Do you have children?" "Do your children live with
you?"
·
Social groups - "Do you belong to a neighborhood watch group?" "Do you
do volunteer work for any law enforcement agency or quasi-law enforcement
agency?"
·
Bumper Stickers - "Do you have or have you ever had bumper stickers on your vehicle?
If so, what did the bumper sticker say?"
Other factors and considerations:
Age. The juror’s age is important
because it tells you what generation he belongs to, which can be a good
indication of his belief systems. For
example, jurors from Generation Y, which will be everyone on your panel in
their mid-twenties and younger, tend to be holistic. This means they are often more sympathetic to
the problems of others and may be good plaintiff’s jurors. Jurors from the
World War II generation, on the other hand, may not be good jurors for a
plaintiff who is looking for a substantial damage award because they tend to be
more frugal. The juror’s age is also
important because it may effect how he relates to your client. Conventional
wisdom held that jurors in the same age group as your client would be more
empathetic toward her. We’ve noticed,
however, that jurors in the client’s peer group are often more critical of
clients. Finding out whether a juror
tends to socialize with people his own age—or is more likely to have friends
that are younger or older than him—is a good clue as to how he may react to
your client.
Education. The first thing you’re looking for in the
juror’s educational background is simply his education level. Generally speaking, people with higher education
levels have a more sophisticated kind of intelligence. This may be important if your case is
particularly complicated or technical. We
do not mean to say, however, that the less-educated jurors are unintelligent.
There are many reasons intelligent people do not obtain college degrees. The
juror’s responses to other questions should give you a good idea of his
intelligence level. You also want to
look at what the juror studied in school. The juror’s area of study or type of
degree can indicate what type of “thinker” he is. By this we mean how he
processes information. A person with a degree in electrical engineering, for
example, is going to be a more logical juror; whereas, a personwith a master’s
in social work is likely to be more visceral. Knowing how your jurors process
information is important when it comes to deciding the most effective way to
present your evidence.
Work history. Because our jobs occupy so much of our time,
what a person does for a living reveals a lot about his belief systems. Of
course, the kind of work a person does can give you a good idea of his value
system—for example, whether he works for a non-profit organization or a
bank—but how long he’s been at that job also tells you something important
about the juror. Some people experience
what we call “the nesting effect.” These individuals hold one job for a long
period of time (they are also usually married to one spouse for a long time).
The nesting effect indicates that a person has strong family values. As with
education, work history can also tell you if juror has experience in an area
related to your case as well as how he processes information.
Training. This question is similar to
the education question but is important for jurors who don’t have degrees—as
well as all those people out there who ended up in jobs completely unrelated to
their degrees. If a juror has a particular expertise in an area relevant to
your case, you need to know this.
Seating a juror like this is like having an additional expert witness.
She will consider herself an expert on that subject, and the other jurors may
too.
Feelings about lawsuits. Pay careful
attention to the wording of this question. We ask the jurors to tell us their
“feelings or opinions” about personal injury lawsuits. We word the question
this way because we’ve found that the visceral jurors tend to give answers like
“nothing” when asked what they “think” about personal injury lawsuits, and the
cerebral jurors tend to give the “nothing” answer when asked how they “feel”
about these kinds of lawsuits.
Although the
question may seem repetitive, it’s actually been carefully worded to get
answers from as many jurors as possible.
Notice also that this is an open-ended question. In light of the fact
that tort reform and lawsuit abuse have been hot topics lately, we want to give
the jurors the opportunity to express themselves in their own words on this
issue. We think this is one of the most
important questions to ask in every civil lawsuit. Although the question in our sample
questionnaire is about personal injury lawsuits, the question could easily be
reworded to read, “What are your feelings or opinions about people who bring
civil lawsuits?” A negative answer to this question should always raise a red
flag for a plaintiff’s attorney.
Would you sue? When asked whether they would sue if injured
by someone else’s negligence, many jurors will give answers like, “I’m not
sure” or “It depends.” The reasons they
give for their uncertainty can tell you the quantity and quality of evidence
you will need to present at trial. As
for the jurors who actually give unconditional answers to this question, you
should absolutely follow-up with them in voir dire. Start out by making sure they truly understood
the question, explaining that in your hypothetical question the other person
really was responsible for a serious injury because of his negligence. People
who indicate that they would not sue, even after having the question explained
to them, are extremely unfavorable jurors for plaintiffs. This is true because people tend to impose
their own belief systems onto others, so they will believe your client
shouldn’t be suing the defendant. Although this question is valuable to
attorneys on both sides in all civil cases, it is the most important question
for a plaintiff’s lawyer in a personal
injury lawsuit.
Future and soft damages. Any juror who says she could never award money
in these areas can be disqualified in a personal injury case. Before you can disqualify the juror, however,
you must follow-up with her to make sure she understands that the law requires
her to award these damages if the evidence supports such an award. Even if the juror retracts her position in
voir dire (perhaps after being questioned by the judge) and says that she would
be willing to listen to all the evidence before making a decision on that
issue, you should consider striking her with a peremptory. It’s been our experience that the jurors’
belief systems will ultimately dictate their decisions, and jurors who answer
this question “no” initially rarely change their minds.
Punitive damages. First, we want to
point out the importance of defining the term “punitive damages” along with the
question. Most jurors have heard the term and have some idea what it means, but
the majority of them will be unsure of its exact definition. Because punitive
damages is another hot-button issue, we also made this question open-ended to
identify which jurors have particularly strong feelings on the subject. If your
case truly involves punitive damages, this question is a must.
Personal experience with lawsuits. If a
juror has been a party to a lawsuit himself, he often starts out empathetic
toward the side he was on in his lawsuit. However, the outcome of his case will
greatly affect his feelings about your client. We follow up this question by
asking the juror what the outcome of his case was and whether he has any negative
feelings because of that outcome. If a juror filed a lawsuit and did not get
the award he thought he deserved, for example, he may be especially hostile to
a defendant. Any time you have a juror who’s been a party to a lawsuit, find
out what kind of suit it was, what the outcome was, and how he feels about that
outcome.
Prior jury service. Our research has
shown that a juror with previous jury experience is often elected foreperson.
This is particularly true if he was the foreperson on the prior jury. Even if
that juror is not elected foreperson, other jurors are likely to look to him
for leadership in deliberations. It’s important to know how these potential
leaders will react to your case. We recommend asking the juror what kind of
case he sat on, whether he was the foreperson, and what the verdict was.
Lawyers are often reluctant to ask the juror the verdict because they feel it
is improper. There is no prohibition against asking a juror this question—the
verdict is public record. That being said, it is clearly inappropriate to ask
the juror any questions about the deliberative process during his prior
service. You should also ask the juror
whether he has any negative feelings about his previous experience on a jury.
If there was anything that bothered him about his prior service that you can
avoid in your case, you need to know that. Jurors often tell us, for example,
that they were annoyed by lawyers who kept repeating themselves. This is an
annoyance you certainly want to avoid.
Television and newspapers. You can
learn a lot about a person by what TV shows she watches. A juror’s regular
viewing choices give you an insight into her personality. Similarly, what a juror chooses to read, if
anything, also says a lot about her. For
example, many cities have alternative weekly papers that are much more liberal
than their mainstream counterparts. A woman
who regularly reads Atlanta’s weekly alternative, Creative Loafing, will probably be driven by a different value
system than one who sticks to the more conservative Atlanta Daily Constitution.
Organizations. The answer to this question provides a
snapshot into the juror’s life. It tells
you what he values and what anchors him in the community. Does he belong to a charitable organization or
a country club? A union? A political
organization? A juror’s social
affiliations often reveal how he might react to the issues in your case.
People they admire most and least. Besides gaining information from this
question, you also gain insight into the juror’s thought process. Some jurors list all family members as the
people they admire most, while other jurors put no family members on their
lists. The former indicates people who
are going to be receptive, for example, to evidence about loss of
companionship. A juror who lists all
businesspeople and politicians, on the other hand, is likely to be more
analytical, which means a different kind of evidence will appeal to him. We usually see public figures on the
least-admired list, such as the current President or Sadaam Hussein. Jurors whose least-admired list is more
personal, naming perhaps an ex-spouse or former friend, are telling you that
they’ve had some dramatic negative experiences that are still influencing them.
Don’t overlook the unconscious clues either.
For example, if a male juror lists his three least-admired people as the Devil,
Osama Bin Laden, and Hillary Clinton, he has some serious issues with strong
women. Besides looking at each name on
the lists, look at the lists as a whole to see if they’re telling you anything
else about the juror.
Adjectives. This is one of the “must have” questions. How
the jurors view themselves reveals a tremendous amount about their value
systems and life experiences. We’ve
provided a sample adjective question, but be sure to tailor your adjectives to
your case. If your main goal as a
defendant, for example, is to keep the damage award to a minimum, it’s
important for you to find out which jurors consider themselves generous—and
keep them off your jury.
Hobbies and interests. Learning what the jurors do with their time
will tell you what motivates them. Reading
the answer to this question is like looking through a window into their homes. Their personal priorities and values will
greatly affect how they perceive the issues in your case.
Politics. Many people’s answers to the political
question will mirror how they feel about the current President. Jurors who like the President are going to
align themselves with him politically, and conversely, jurors who dislike the
President are going to identify themselves with the contrary view. The greatest value in this question is that it
identifies jurors who are more inclined to go against popular opinion.
Financial decisions. The purpose of
this question is to find out which jurors are comfortable dealing with
financial issues in general. When you’re asking the jurors to make a financial
decision that will have a significant impact on your client, you want to know
which will be instrumental in the decision and which are more likely to sit
quietly while the numbers are being crunched in deliberations.
The hardship and catch-all questions. The last two questions are strategically
placed at the end of the questionnaire. The
first question allows the jurors to discuss any hardships that would prevent
them from sitting on the jury. We put
this questionnaire at the end because we don’t want jurors to start out thinking,
“I’m not going to be on this jury anyway,” and then not take the rest of the
questionnaire seriously.
The very last
question we ask gives the jurors an opportunity to vent. They can say anything that’s on their minds.
This catch-all question is sometimes referred to as a Rorschach question
because it allows the jurors to “blurt out” whatever they’re thinking. We also
call it an “oyster” question, because you have to shuck a lot of oyster to get
a pearl. By that we mean most
of the answers to this questions
are run-of-the-mill, but when you get a good one, it can be the most important
answer on the questionnaire. When a juror has a strong opinion about an issue
in your case, the justice system in general, or anything remotely relevant, you
will see it in this answer. We think this powerful question should be at the
end of every questionnaire because it often answers the question you never
thought to ask.
The Context of the Psychological Approach to Voir Dire
Now, I would like to put this
psychological method in context of an overall approach to voir dire. Juror
beliefs are just one of many factors to consider when preparing for voir dire.
1.
Credibility -
If jurors don't trust the attorney, they will not listen to the attorney. It is
critical to establish credibility as early as possible in the trial.
2.
Relevant
laws - You need to ask questions of jurors about the laws they must
consider when deliberating. Jurors often have misconceptions or unusual beliefs
about the law.
3.
Burden
of proof - Civil and criminal trials have different burdens of proof but
the attorney's task is the same regardless of the type of trial. The attorney
should ask questions to identify juror biases regarding burden of proof
4.
PowerPoint -
There are methods of constructing and presenting PowerPoint presentations that
are very powerful. Done correctly, PowerPoint can be used in voir dire, the
opening, the case in chief and during closing to convey a compelling story
about your case.
5.
Story
Model - Jurors do not base their verdict on facts and argument directly.
Rather they base their verdict on the story they tell themselves about the
facts and argument. Since you know jurors are going to tell themselves a story,
provide them with your story about the case.
6.
Leaders -
It is really important to identify individuals who will become the leaders in
the deliberation room. One strong leader can sway an entire jury panel.
Conclusion
Voir dire is the
only part of a trial when it is possible for an attorney to dialogue with
jurors but getting jurors to talk to you is only part of the task. Jurors need
to talk about their beliefs, including their values, opinions and attitudes
because these are the filters through which all evidence and argument must
past. The goal of voir dire is to identify jurors whose belief system would
prevent them from a fair hearing of your case. By carefully considering the
information regarding juror beliefs, the attorney can do a better of job of
deselecting biased jurors.