By Dr. Ken Broda-Bahm:
The court’s purpose in voir dire is to use the time to identify and eliminate those jurors who would have the hardest time giving the case a fair hearing. But layered onto that purpose is the advocate’s goal of working toward a jury that is most likely to be favorable to your side of the case. At a minimum, this should mean, as an advocate, you shouldn’t artificially limit your shot at getting rid of an unfavorable juror, or potentially keeping a favorable one.
This means that the central question in voir dire — “Can you be fair” — is a question that needs to be handled very carefully. Whenever you resort to that question, you should do that with the knowledge that there is a strong gravity pulling potential jurors toward a “Yes” answer. For all those other than the minority who are trying to be excused from jury duty, the question in context sounds like, “Can you live up to the expectations of this court and the trial process?” or “Can you do your job?” They will want to say “Yes, I can.” To account for that, there are different ways of asking that question, and advocates should go into it knowing whether you are trying to talk them into a cause challenge or trying to talk them out of one. In either case, you should ask only when you know which one it is. In this post, I’ll share some practical recommendations on how to ask the fairness question depending on whether you want to challenge or rehabilitate.
When You Want Bias (Challenge)
When the juror holds negative views that you’d rather not see represented in your jury, you want to guide them toward an admission that it would be difficult for them to be fair, so you can use a cause challenge rather than a strike. To do that, consider questions that let the panelist “wear” that attitude a bit, increasing the feel of its importance, before leading them toward admissions that it would be difficult for them to be fair. Rather than going straight for the fairness question, you want to ease them into it.
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- Tell me a bit more about this attitude/experience of yours.
- How has this affected you?
- Why do you hold that view?
- Sounds like that is pretty important to you, is it?
- It also sounds like it would be a challenge for you to completely put that out of your mind for the duration of this trial, is that right?
- Once this part of the process is over, we won’t be able to converse like this anymore, so you won’t have a chance to let us know whether this is interfering with your fairness or not. Do you think it is better to be on the safe side and say now that this probably isn’t the case for you?
- We know that you would want to be fair, and I believe that you would honestly try to follow the instructions from the judge. But is it safe to say that this would be difficult for you, at least? It wouldn’t be as easy for you as it would be for other jurors, would it?
When You Want Fairness (Rehabilitation)
When the juror has expressed a view that helps you, but also opens them up to a cause challenge by the other side, then you want to talk them back from the brink. By saving them from a cause challenge, you will be forcing the team on the other side to use one of their strikes. To do that, focus on the importance of the role and how it might be premature to count themselves out.
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- You understand that this case is different from the situation you’re describing in your experience, correct?
- Juries in cases like this are often called the “finders of fact,” meaning that you aren’t going to be asked for your opinions, and you won’t be asked about your own experiences, you are just here to say what the facts are. Just what is true and what is false. Does it seem like you could do that?
- It sounds like this viewpoint/experience is important to you. But is it safe to say that you’re also not thinking about it constantly, right? It matters in some situations, but not in all situations, is that correct?
- Every one of us has experiences and viewpoints that make us unique. But what brings a jury together is that they’re all following the same legal instructions. Could you follow the instructions?
- At the end of the case, the judge will give you instructions, and the instructions cover the law that is followed in cases like this by juries across the country. Could you listen to those instructions and do your best to follow them?
When You’re Not Sure
When you don’t yet know whether you want to kick or keep a potential juror, then that just means that you are not yet ready for the “Can you be fair?” question. As long as you are in that position, keep asking open-ended questions so you can find out more about them so you’ll know whether you want them or not.
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