Voir Dire Professor Beverly Reid O’Connell Advanced Trial Advocacy

Introduction Concepts influencing jury selection Goals of Jury Selection Law and Procedure of Jury Selection Questioning of Jurors

Concepts Influencing Jury Selection Really not jury selection but jury de-selection Juggling many things –Connecting with jurors –Getting jurors to open up –Making intuitive judgments about jurors –Process varies –Should client/IO be involved

Concepts Influencing Jury Selection Limited time to question jurors –No right to question jurors in federal court –Parties submit written questions to judge –Prop. 115 repealed the right of attorneys to question jurors Jury selection taking weeks Difficulty in getting jurors Later repealed –Now, attorneys may question jurors in state court subject to court’s time limits

Goals of Jury Selection Obtain information to make challenges for cause –A challenge for cause lies where the juror cannot be fair Death penalty Legalization of marijuana or drugs –The juror cannot speak English Obtain information to exercise peremptories –A party may excuse a juror for any reason (with certain constitutional limitations discussed next) –In federal court, the prosecution gets 6 and the defense 10 –In state court, both prosecution and defense get 10 –In civil cases, the number of peremptories is within the discretion of the trial judge

Goals of Jury Selection Educate the jury about the case, facts, client, parties, witnesses, or the law –Ask the jury about the law, e.g., the legalization of all drugs, self-defense –Ask the jury about their attitudes about the tools used in your case, e.g., how they feel about wiretaps, search warrants, the use of cooperators –Ask the jury about different parties Big corporations –Ask the jury about certain types of witnesses Felons, cooperators

Goals of Jury Selection Develop rapport with the jury –This is your only opportunity to speak directly with jurors –Get the jurors to like you and this may transfer to your client –Don’t exclude jurors –Use juror information -- but in a good way Don’t ask the juror who has been married for 40 years about whether he can understand a spouse cheating on their partner Ask the single person about jealous girlfriends/boyfriends in a stalking case

Goals of Jury Selection Neutralize negative beliefs –Make the jurors understand that the most important thing is keeping an open mind –Two sides to every story Build on positive beliefs –Ask jurors to agree/disagree with a juror who gave you a good answer Seek commitments from the jurors –Wouldn’t change vote just to go home –Wouldn’t make client prove innocent –If prosecution proved case, how would you vote

Procedure of Jury Selection Within the discretion of the trial judge –12-pack: 12 jurors seated and questioned at the same tine –18-pack (or 6-pack): 18 jurors seated and questioned at the same time –Modified Arizona: where you know the next jurors in order and get information on the whole venire at the same time Challenges for cause generally at sidebar Peremptory challenges in open court

Procedure of Jury Selection Language in excusing a juror –“The People thank and ask the Court to excuse juror number 1” –ALWAYS use the same language every time –Jurors will notice a change in your language –To accept the jury, “accept the panel as presently constituted” This gives you the ability to go back and excuse a juror you previously accepted because it is the constitution of the entire panel that matters

The Law of Jury Selection Can only ask questions going to cause, i.e., the juror’s ability to be fair Can impermissibly exercise peremptory challenges Batson v. Kentucky states that a litigant cannot exercise peremptory challenges to discriminate –A prima facie case is made where a the defendant is a member of a cognizable group and the prosecutor uses peremptory challenges remove members of that group from the jury and “these facts and other relevant circumstances raise an inference that the prosecutor excluded jurors on account of their race”

The Law of Jury Selection Impermissible use of peremptory challenges –In California, a different standard until People v. Johnson (2005), which incorporated the federal Batson standard –Reverse Batson available to the prosecution –Party accusing the opponent: Must make a prima facie case of a “pattern” of exercise of peremptory challenges for an improper purpose Judge must then find a pattern The side exercising the challenge must explain the permissible reason for the challenge The judge then evaluates the reason to determine whether pretextual The judge CANNOT dismiss the challenge without an excuse

The Law of Jury Selection Impermissible use of peremptory challenges –Types of inadmissible challenges Gender Race Ethnic as well as racial groups –Pretextual reasons Prosecutor trying an African-American defendant for drug possession. Prosecutor excused three African-Americans but said he was excusing the jurors based upon where they lived, Compton, CA. The Ninth Circuit held that this was pretextual for race. –Permissible reasons Non-verbal behavior –Remedy: seating the juror or a mistrial

The Art of Jury Selection Types of Questions –Open-ended questions get a juror talking about themselves –Closed-ended questions get specific information from a juror, but are not leading –Leading questions tells something to the other jurors –Ask questions that reinforce your themes –Ask questions to the panel and also the individual jurors –Defensive Voir Dire

The Art of Jury Selection Jury Selection Theories –Impressionistic questioning: very intuitive, i.e., the juror likes me –Generalization/Stereotyping: selecting characteristics which would tend to favor your position E.g., homeowners are thought to favor the prosecuion Bank tellers are conservative What type of juror is a prosecutor?

The Art of Jury Selection Jury Selection Theories –Character/Personality trait questioning: bases selection on personality traits Assertive nature Follower Listener Comminicator –Non-verbal behavior WATCH, WATCH, WATCH Even when court is just beginning –Jury Profiler: jury consultant picks a mythical perfect juror

The Art of Jury Selection Attorney Behavior –Be open What color suit do you wear Where do you stand What do you do with your hands Do you write –Engage the jurors in conversation –Don’t rush –Be an active listener Smile Nod your head

The Art of Jury Selection Attorney behavior –Follow up –Stand –Maintain Eye contact –Don’t interrupt –LSITEN, LISTEN, LISTEN –WATCH, WATCH