Voir Dire: Teaching the Rules

November 9, 2012 Law School Courses

“We don’t look alike. We don’t act alike. We don’t dress alike. We have different tastes in the food we eat, the books we read, the cars we drive, and the music we enjoy. You like opera; I like country. We have dissimilar backgrounds, goals, and motivations. We work at different jobs, and we enjoy different hobbies. You like rock climbing; I like Harleys. We ascribe to a variety of philosophies and differ over politics. We have our own unique convictions on child-rearing and education. Our weights vary. Our heights vary. So does the color of our skin. So why should we think alike?”

In my class at UM law school I teach by using mock trials. I continually interrupt the process to discuss the strategy, the rules of evidence and the arts of persuasion. Through this time consuming method, I find the concrete examples to use as a learning tool. I don’t think anyone can learn to try cases by attending lectures, reading books or watching videos. One has to do it to grasp the techniques. So I stress doing over listening.

We start each trial with jury selection. All the students not working as lawyers in the mock trial sit in the jury box as jurors. To make the process work, I require the student jurors to answer all the questions truthfully as themselves. That makes it all the more fun and instructive. This is one of my favorite parts of the class. It is free swinging exercise and always provides a rich vein of examples to use.

I first became interested in the potential of good voir dire while working as a public defender in the early 1970s. This was a time of turmoil because of the Vietnam war protests. The riots and disturbances caused several major trials which gave rise to what became known as scientific jury selection. This created a sea of change for jury trials and I wanted to know all about it.

The birth of scientific jury selection came out of the Berrigan Brothers trial. A number of catholic priests and nuns were charged with federal crimes out of their protests. The government selected Harrisburg, Pennsylvania as the most conservative community for the venue for the trial. But the government suffered a shocking loss. It came about because of the radically new jury selection methods used by the defense team. They did polling, had body language experts and drafted new types of questions for voir dire. The man responsible for the jury work was Jay Shulman. He subsequently wrote an article about his craft. Jay Schulman, et al. (May 1973) “Recipe for a Jury,” Psychology Today, pps. 37-84.

I called Shulman and asked him to speak to us PDs in Miami, and surprisingly he agreed. It was an eye-opening experience. He amply demonstrated how jury selection is a form of applied psychology. This is when it first dawned upon me to use other disciplines in our work rather than just reading legal textbooks.

Shulman convinced me that trials could be won in jury selection. Of course, the best jury work won’t overcome the worst set of facts, but neither will anything else you do. Voir dire frames the issues and sets the tone for the trial and gives one side the edge; that advantage is the jury’s view of the case. Is the case about “getting drugs off the street” or “making the government follow the law?” “Protecting children” or “preventing false convictions?” “Sending a message” or “being fair?” The jury is going to come out of jury selection with one of these themes and you want it to be yours.

As a result of all my jury selecting experiences I have formulated several rules for teaching the craft to others:

1. Everyone lies — and why not? We lie to them — We claim we only want a fair jury when we really want one on our side, and so they lie back to us and tell us what they think we want to hear. It is time to break the pattern of politically correct lying.

“Everybody lies”—or so says the protagonist on Fox TV’s popular medical drama, “House.” Gregory House is Vicodin-addicted, self-centered, and a brilliant diagnostician—and he does indeed discover—that most of his patients lie about something which makes his task of discerning the real from the deception just a bit more difficult. His task is not dissimilar to ours.

So assume all jurors are being politically correct and not telling you the absolute truth about their feelings. They mouth cliches they think you want to hear. It takes a long time to get to some semblance of the truth. If you keep at it long enough and be up front and honest with them, they will soon start telling you the truth about themselves.

2. Everybody is biased and prejudiced. It is the human condition. No one is impartial. “A great many people think they are thinking when they are merely rearranging their prejudices.” William James 1842-1910, Psychologist, Philosopher and Author. Do you really think that they feel cops are just like anyone else? Either they like them or not. No one is neutral about the police. Arrested? Harassed? Victim of crime? It will drive their feelings.

3. It is a conversation – You sell yourself and your message by making each person in the venire the absolute center of the universe. People love to talk about themselves so draw out their life stories. Pretend you are Larry King and unthreateningly delve into their lives.

If you want to find out how a person thinks, you have got to let that person do the talking. Getting a conversation going requires you to ask open-ended questions that invite narrative responses, the kind of questions to let them tell their own story. You can reveal the prospective juror’s thinking if you ask those “what, why, how, when, where, and who” questions.

Only ask questions that keep the conservation flowing. Sometimes they people will get stuck and stop talking. Make talking to you an enjoyable experience. Don’t be afraid to ask for elaboration. Give them the freedom to share with you. Use questions like:

“That sounds interesting. Could you tell me more about it.”
“What do you mean?”
“Why do you feel that way?”
“How long have you felt that way?”
“How/where did you develop those beliefs?”

If you don’t know what to ask, just use simplest follow-up question in the world: “Why?”  It doesn’t matter what question you ask, just so long as it’s open-ended and gets him talking. (The best words to use when asking open-ended questions are “Why?” “How?” “Explain…” or “Tell us…”)

Everyone likes to talk about themselves; give the prospective jurors a chance to talk. When you ask the right questions you provide them the opportunity to give you insight into their attitudes and beliefs.

4. Don’t lecture in a futile attempt to change their minds – In the film Inception, Cobb tells Saito, “What’s the most resilient parasite? . . . . An idea. A single idea from the human mind can build cities. An idea can transform the world and rewrite all the rules. Which is why I have to steal it. ” Ideas are sticky and won’t be dislodged from the juror’s mind by your clumsy questions.

You can’t unlearn what you already know. Jurors have spent their entire lives developing their beliefs, their life experiences, and their worldviews. It’s the height of arrogance (or stupidity) for us to think that we can change those views or convince them to ignore an entire lifetime of experiences during the pitiful amount of time we have to conduct jury selection. The judge tells jurors to put it aside. I follow up by asking them where they put it.

I have studied the methods religions and political movements spread. It is easy to see how they work. Religious and other marketers of successful ideas don’t market the facts. They market the stories which match the worldview of their audience.

4. Lance the boil — Don’t be afraid to ask delicate questions about your case. As I said the voir dire is not going to change any minds for better or worse. So don’t think by asking questions you will turn anyone against you. So ask the tough questions and find out the prejudices lurking in those minds.

5. Be Respectful — but ask the tough questions anyway. Speak to the juror the way you would want to be spoken to: with respect. Even when a juror expresses an outlandish, “know nothing,” prejudiced attitude, the juror is entitled to respect. Remember, the juror probably doesn’t want to be there any more than you want that juror there.

6. Don’t waste their time — ask all the questions you need answers to. But don’t ask questions that don’t relate to your case. Ask questions about issues in your case. Get as close to the facts as possible without the judge closing you down.  What is your goal? Plan. Purpose. Better have one for each question. You are invading their privacy. Have a good reason. If religion is important to your case, then ask about it; if not, leave it alone. Same with politics. There are no politically correct limits here. You need to know. They decide the case. Not the judge. You need to know who they are. When a question focuses on an issue with more obvious relevance to a legal issue they’ll be deciding (e.g., “Do you believe that false claims of rape are common or uncommon?”) then the panel will  appreciate your reason for asking. In voir dire, you should engage in targeted and selective digging, not a wholesale excavation.

Remember well what a consultant noted: “While the lawyers are picking the jury, the jurors are picking a lawyer.”

7. Practice Practice Practice — I believe in the Nike rule: Just Do it. Just start talking. Don’t plan your next question. Forget your script. Forget the prosecutor. Forget the judge. Talk with the people. The time for worrying and thinking and planning for scripts and prosecutors and judges is past. There is nothing more than can be done to be prepared for this moment. Just Do It.

8. Life experiences –Your life experiences affect how you sees the facts of a case.  The truth of the matter is that your jurors’ experiences are less important than you might think; what matters most are the attitudes left behind by these experiences.  “We don’t see things as they are, we see them as we are.” Anais Nin. Who among us has not been influenced by our upbringing and our experience?

One step I would recommend is to look up attitudinal studies regarding subjects you are concerned about, like the police. Such studies will provide you with information for creating an ideal juror profile. Obviously, if you are the defense you want people with negative attitudes toward the police.

“The meaning of things lies not in the things themselves, but in our attitude towards them.” Antoine de Saint-Exupery

How much detail should you go into about each event, such as every larceny or burglary they suffered? It is more important to know what they did as a result of the crime. The relations with the police. Put in alarms. How much fear? If they were in an automobile accident, then ask how they think others should drive. It is the take-away that is important, not just the event. The attitude left behind from the event. Your voir dire strategy is to uncover the attitude.

9. Law School Training – Those of you who have read my prior posts on the law school know I believe that the real training should occur in school, taught by trained teachers, rather than in an apprenticeship type program where the mentor is running a business rather than focusing on training. Here is what I would do if I were really dedicated to this. There would be three hours from 9 to 12 on case law and theory. One hour for lunch. Then 1pm to late evening doing it until I am convinced every student who is trying gets it. It would take nothing less and probably a lot more.

There is a big disconnect between law and practice in voir dire exam. The law tells you nothing about how to do it. That is why I propose a class from 9 to 12 on substantive law and doctrine. Then a much longer time actually practicing how to do it.

One method I would use to teach these skills is what I call the Party Exercise. Every student would be let loose in a party filled with strangers with the instruction that they had to engage everyone in a conversation and afterwards I would quiz them on how much they learned about each person. I would score them on the information but also on how they performed. How intense. How focused on each one to the exclusion of all else. Did they look them in the eyes? Did they connect? Could they talk without any notes? Did they seduce them (not literally of course)?

Practice: You have to become comfortable with talking with people, connecting with them, and not so worried about following a certain number of “steps” during the interview or interrogation. Don’t get lost in the mechanics of the interview or you will not connect with the person and you will inevitably miss a lot of information and opportunity during the interview.

Here are suggestions:

Look in eyes.
Like wanting to pick up at party.
Show you are interested them.
Never never look away from a juror.
Total focused interest.
Channel Bill Clinton.
Never read to your legal pad.
If you have to read look up then speak.
Only speak when looking at a face.
Try to find things in common with the juror–not false things, real things. This is an important part of building rapport, and requires genuine self-disclosure.
After asking the question, wait for the juror’s answer. Silence, if you can stand it, will get the juror talking.
Listen and respond appropriately. Follow up on the juror’s answer. “Why do you feel that way?” or “Can you tell me what makes you say what you just told me?” are among the best ways to clarify what the juror truly thinks.
No lectures. You wouldn’t give a lecture to a stranger in a bar, and you should rarely do it in the courtroom.
No legalese. We don’t always understand it, jurors rarely do.
Be yourself.