Dr. Ken Broda-Bahm:
You’re in the first moments of jury selection, looking at the pool of fresh and still-unknown panelists. At this early phase, those who are talking or itching to talk are, without fail, those who want out: They’re self-employed, have significant work responsibilities coming up, are booked for an upcoming vacation, or all of the above, and they want you and the judge to know it. The rest of the group, however, is settled in, apparently focused on just getting through this exercise with a minimum of attention directed at them. They are keeping quiet and they’re not eager to raise a hand or to otherwise stand out. These potential jurors are just indistinct members of the group, and they’re happy to stay that way.
These potential jurors are under what I call the “blanket of anonymity,” which describes the habit of many to most in the early stages of voir dire to keep a low profile, avoid volunteering, and generally remain quiet. It reminds me of the grade school situation where the teacher is asking for a volunteer and everyone is studiously trying to avoid eye contact. That blanket of anonymity can be a comfortable place to be. Given that the overall setting and situation are unfamiliar to the panelists, and given that the attorneys are about to get into some questions that may seem personal or probing, it makes sense that potential jurors would not want to stand out. The goals of a good voir dire, however, demand that you pull the venire members out from under that blanket so that you can learn about the attitudes and experiences that could serve as a foundation for your strikes and your challenges for cause. A good attorney will need to work to reset the situation, and counter jurors’ natural tendency to blend with the group. In this post, I will share six ways to do that.
1. Set a Context for Disclosure
Initially, you need to frame the voir dire process, not as a time to test for which jurors are unsuitable due to “bias,” but instead as a time to openly talk about relevant views and experiences. Think less “inquisition” and more “talk show.” Use your introduction to set that context and take some time to model that purpose yourself by sharing some of your own views or experiences, letting them know that there might be some cases that even the attorney before them wouldn’t be the right juror for.
2. Don’t Discourage Expression
When someone on the panel says something that hurts your side, it can be tempting to follow up by minimizing what has been expressed by saying something like, “But you haven’t heard the evidence yet…” or “But you understand that this case is different….” By doing that, you might be not only talking an unfavorable juror out of a cause challenge, but also sending the message to the rest of the group that they may offer an opinion only to be told that the opinion isn’t relevant to what we’re doing here. Get into the habit of affirming expressions (“Thanks for sharing that…”) even when the expression is a negative one.
3. Avoid “Please Agree with Me” Questions
In my experience, too much time is wasted with attorney’s set-up questions, like “Do you agree with me that…” inserting a belief favorable to your side. Priming in that manner doesn’t help you learn anything about the potential juror and doesn’t truly “commit” them to anything. Unless you are rehabilitating a juror away from a cause challenge, leading questions aren’t your friend. For the panelist who is trying to lay low and stay anonymous, the easiest thing to do is to just agree so you move on and talk to someone else.
4. Ask Easy Open-Ended Questions
In a good voir dire, you want the jurors to be doing most of the talking. You want answers that are not just checking a box, “yes” or “no.” Rather you want answers that involve the jurors revealing a bit about themselves. That is what identifies areas of concern, or potentially induces jurors to start voicing themes that are helpful to your side. The best way to get the group talking is to ask open-ended “What are your thoughts about… ” questions embedding each of the issues relevant to your case.
5. Randomly, or Strategically, Pick on Individuals
Questions that ask “Does anyone…” hold a particular view don’t do well in inviting participation. Asking “Who believes…” is a little better in at least planting the suggestion that someone believes it. But what is best is often just picking a potential juror and asking, “Ms. Wilson, what do you think about” the issue. The choice of who to ask can be guided by who you haven’t heard much from, or — if you think a particular panelist is likely to voice good themes for your case — you can pick someone who has already shown themselves to be a likely strike for the other side.
6. Pivot off of Juror Comments
Once a juror expresses an opinion, ideally in response to your open-ended question, you can follow that up with “And who agrees/disagrees with Ms. Wilson?” By tying the question to an already-expressed opinion you are signaling to other jurors that it is okay and normal to have an opinion like that, and okay and normal to discuss it. Also, asking them whether they agree with a statement made by another on the panel will be seen as less manipulative than asking them to agree to a statement from you as an attorney.
Ultimately what you want as an attorney is a free and unguarded stream of information from the pool so that you can exercise your strikes and challenges intelligently and with a foundation. That can be a challenge when jurors want to stay quiet and unknown. As the attorney, your job is to break the ice and signal to them that voir dire isn’t the time for anonymity.
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Other Posts on Jury Selection:
- Bring Your Client to Voir Dire
- Keep Your Mini-Opening to its proper purpose
- Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories
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