By Dr. Ken Broda Bahm:
Ever had the experience of asking someone to ask someone else something on your behalf? It’s like a sixth-grader’s attempt to find out if someone likes you. Sometimes you need a little plausible deniability but, in most cases now, it’s easier and more direct to just ask on your own. And that is pretty much what attorneys want in voir dire. It is nice for the judge to explain the procedures and deal with some of the more obvious hardship and cause challenges, but I think it’s safe to say that every trial lawyer wants the chance to ask their own questions in voir dire. Unfortunately, in some states and in most federal courtrooms, attorney-conducted oral voir dire is either limited or nonexistent.
The judges in those courtrooms, however, have discretion, and can allow attorney-conducted oral voir dire if they think the case or the circumstances call for it. So, when attorneys do have an opening to argue for their own chance at the lectern during voir dire, how do they make the case? If the judge is firmly convinced that it’s wasted time or an unwelcome opportunity for lawyers to ask panelists to prejudge the case, then nothing is going to change that judge’s mind. But if judges are on the fence, then a joint request from the parties, along with a few good reasons, might be enough to sway them. This post offers five reasons, along with some supporting research, that could buttress a brief or an oral argument in favor of attorney-conducted oral voir dire.
1. Responses to Attorneys are More Honest
The first and best reason for attorney-conducted voir dire is greater candor. You might think that, armed with robe and gavel, the judge would command more respect and honesty, but it is really the opposite. When questioned by a high authority figure, panelists are more likely to be influenced by evaluation anxiety and to shade their answers in what they see as a socially desirable direction. The lawyers, of course, are also authority figures, but to a lessar degree. One study (Jones, 1987) shows that attorneys were much more effective than judges at getting honest answers (as measured by a pretest administered before voir dire). When questioned by the judge, panelists were almost twice as likely to change an answer from what they had previously reported.
2. Attorney-Conducted Voir Dire Yields More Participation From the Panel
You don’t learn anything from panelists sitting silently in the courtroom. Questionable attempts at “face reading” aside, you really need to hear from the panelists themselves. Judges, however, will frequently ask the kinds of “has anyone…” questions that are often met with either complete silence or just a hand or two being raised. When that style of questioning dominates the voir dire, you will not hear much if anything from a large chunk of jurors. One judge, Gregory Mize (1999), formerly of D.C. Superior Court, and now with the National Center for State Courts, conducted a study based on panelists in his own court. What he found was that an average of 28 percent will remain silent throughout a judge’s group voir dire. Lawyers can make the same mistake of focusing only on “has anyone…” style questions. In my experience, though, lawyers are more likely to understand that it is good to hear from everyone before the voir dire ends.
3. Attorney-Conducted Voir Dire Allows Attorneys to Ground Their Peremptories
It is the nature of peremptories that lawyers don’t need to give a reason for their strikes, unless of course, they’re subject to a Batson or similar challenge. Even without that call for an explicit justification, however, lawyers should still have their own good basis for exercising a peremptory challenge. If the questioning just focuses on those factors that have the potential to serve as a cause challenge, as judges are apt to focus, then there is no clear grounding for the peremptory challenges. Each team will end up using some as a backstop for failed cause challenges. For the rest, however, attorneys are left with just what they can see, and are therefore tempted to make strikes based on unreliable demographic factors like race, sex, and age. To be effective, attorneys need to get at the case-relevant experiences and attitudes that won’t necessarily rise to the level of a cause challenge, but can still influence jurors’ leanings against their clients.
4. Attorneys Are More Likely to Ask About Attitudes in Voir Dire
I recently sat through a court-conducted voir dire in which the judge expressly told the parties that he would only ask about issues in the panelists’ background and experience that would serve as a basis for a cause challenge. When my client gingerly suggested asking about their views on compensability for nonphysical injuries, the judge quickly replied, “That’s an opinion question, I won’t allow it.” I’ve long wondered, what is it about attitudes that makes judges, and sometimes counsel, reluctant to inquire? After all, even when it arises based on experience, bias manifests itself as an attitude. So why is it suspect to ask about attitudes? I can see the reluctance to open up potential jurors to overly intrusive questioning, but when the attitude bears on the case, it should be discovered in voir dire, if possible. Attorneys, I believe, are more likely to be motivated and trained to discover those views and ask in a way that yields an honest response.
5. Attorney-Conducted Voir Dire Reinforces the Role of the Parties
The goal of minimizing bias on the jury panel isn’t just in the court’s interests. It is most tangibly in the parties’ interests as well. But if the parties are just listening to the judge’s questioning and then exercising their strikes, then they are playing a pretty passive role. By allowing counsel a chance to address and directly question the panel before they become jurors in the case, the court is reinforcing the message that this process is for the parties, so they can get the benefit of a trial that is more fair. The parties are participating by selecting and asking their own questions because they want to conduct their own inquiry in support of their own decisions on cause and peremptory challenge. In short, they should have a voice because it is their process.
There is a sixth reason: it probably won’t be persuasive to judges, but it should be important to litigators. Attorney-conducted oral voir dire is an invaluable opportunity to develop rapport with potential jurors. If you use that chance to not just recite questions and record answers, but to really talk with jurors and show them some of your own personality, then you aren’t just learning about them, you are also letting them learn about you. Showing your humanity in that way can be an important foundation for credibility and for persuasion down the road.
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Other Posts on Voir Dire:
- Don’t Prehabilitate
- Lawyers, Set Aside Your Own Bias in Voir Dire
- Beware the Herding Instinct in Opinion Formation
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Jones, S. E. (1987). Judge-versus attorney-conducted voir dire: An empirical investigation of juror candor. Law and Human Behavior, 11(2), 131.
Mize, G. (1999). On better jury selection: Spotting UFO jurors before they enter the jury room. Court Review, 36, 10-15.
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