It ain’t science—it’s social science. Luckily, most trial lawyers are more suited to chatting up potential jurors than manning a microscope. Use that expertise to your advantage during voir dire.
Jeff Strange
Before my first jury trial I was a little surprised when the judge gave me a mere 15 minutes to voir dire the jury panel. I took it in stride because I thought he was angry that I was making him try a trespassing case, but on the plus side, the limit gave me less time to do or say something stupid. The harsh reality that I learned in subsequent trials was that 15 minutes was about all the time a Harris County misdemeanor judge was going to give me, period.
If picking a jury were hard science, I would have been pretty much hosed from that point forward. (If any of us were good at science, we would have gone to medical school.) Success in jury selection relies on your interpersonal skills—your ability to stand in front of a group of people and make them like you, trust you, and share personal information with you. So relish the fact that jury selection, especially with a 15-minute time limit, is not science, and realize that a social nature gives you a head start on connecting with jurors. There are woefully few absolutes when it comes to selecting juries, but you can do a few things to maximize your time and make the selection process slightly less random.
While I encourage prosecutors to learn acceptable shortcuts, make educated guesses, and develop “gut instincts” about jurors, I am not advocating striking jurors for inappropriate reasons. A prosecutor who excludes jurors based on race, religion, ethnicity, or gender is behaving illegally and unethically and is just plain lazy.
Jury selection by its nature forces attorneys to assume things about jurors based on incomplete information. What your gut says, however, is no substitute for actually visiting with members of the panel and receiving information on which to base your peremptory challenges. A Batson hearing may ultimately require prosecutors to give the trial court race-neutral reasons justifying their peremptory challenges, and that process is less of a challenge if you have actually visited with the juror and the record justifies your decision to exclude them. A prosecutor who bases peremptory challenges solely on the jury information cards never gets the opportunity to gauge the potential juror’s attitude toward the State or the case.
As you stand before the panel, remember that voir dire is a two-way street. As the lawyers are evaluating potential jurors, veniremembers are also making their initial judgments about the attorneys’ competence and fairness. Everything you do in front of the panel must be even-handed and must appear fair. Jurors require absolute confidence that you will present your case honestly and that every word that comes from your mouth is true. Any effort to slant the law or circumstances in the State’s favor will be perceived as gamesmanship and could cost you the panel’s trust.
As you are making assumptions about the venire’s appearance, they are doing the same with you. It goes without saying that conservative clothes are appropriate, but remember the small details, such as shined shoes and a matching belt. When you stand before the jury, you want them to focus on your case and what you have to say, not your inability to match your clothes.
Prepare ahead of time
I typically use a detailed outline instead of a script to guide me through jury selection. As I prepare to cover the relevant legal topics, I consider a number of open-ended hypothetical questions to bounce around the panel to stimulate discussion. Working from an outline provides more freedom to address the specific issues raised by the panel, which I do more effectively without worrying about a script. I generally want to be loose and friendly in front of the group and create an atmosphere conducive to free discussion.
I do script my questions to challenge jurors for cause, which I discuss at more length later in this article. As jury selection is in reality juror exclusion, it makes sense to be able to exclude people quickly. While drafting my outline, I consider the legal topics I will discuss and formulate relevant questions to stimulate challenges for cause. Keeping in mind the necessity to make the record legally justify my challenge, I compose questions to cover each necessary element of the challenge. Remember that when challenging jurors you are no longer gathering information; you are making a detailed record as fast as possible to justify the exclusion and move on to the next topic or juror.
Adjust expectations
What may you realistically accomplish in the quarter- to half-hour the judge lets you visit with the jury? Jurors predisposed not to like you will continue not to like you; jurors with a bone to pick with the system will not be swayed by the majesty of your courtroom presence. Erase any delusions that it is possible to change a panelist’s deeply held beliefs during voir dire. Jury selection is your opportunity to identify and get rid of problematic jurors, not win their hearts and minds. Do not fall into the trap of arguing with jurors in a pointless effort to change their opinions, and do not worry that what a veniremember says aloud will somehow poison the rest of the panel. When a juror confronts you with a hostile position, thank him because he is doing you a favor. A confrontational juror exposes not only his bias but also the bias of anyone who nods her head in agreement.
Scour the jurors’ information cards
These cards provide minimal information about the people you have insufficient time to get to know. Do not panic. Depending on the jurisdiction, you should be provided with the juror’s name, age, address, occupation and length of employment, spouse’s name and occupation, the number and ages of any children, whether the juror has any prior jury experience, and involvement, if any, in prior criminal proceedings. This information should at least speed up the getting-to-know-the-panel process.
There is no magic State’s juror eager to blindly follow you to Convictionland. The entire answer will never be found on the card, but you can find clues about where jurors are in their lives. I look for signs of stability and jurors who have a stake in the community. Length of time employed at the same job or married to the same person are good signs. Jurors who have invested in a house or have children attending local public schools are more likely to take to heart the quality-of-life issues that I stress during the course of a trial.
Remember that jurors do not check their self-interests and attitudes at the courthouse door when they arrive for jury service. A jury’s receptiveness to a particular case depends on the extent to which the facts and desired outcome are compatible with their collective belief system. Never underestimate the human factor in jury selection. Not only is it not science, it’s not even always logical.
You are provided with jurors’ addresses, so learn as much as you possibly can about the communities and neighborhoods in which they live. I have been a prosecutor in one large jurisdiction (Harris County) and two medium ones (Cameron and Fort Bend Counties). As a Harris County prosecutor, I studied a key map, attempting to memorize zip codes to their corresponding parts of town. In Cameron and Fort Bend Counties, it is possible to know individual streets as well as neighborhoods and subdivisions. (It’s amazing how some will continually reappear in offense reports.)
People tend to adopt the collective attitudes of their communities. For example, police are perceived differently in various parts of town and to some extent, so are crooks. It can be easy to stereotype people on this basis, but resist the urge. A hardworking laborer who serves on your jury may resent a quick-buck drug dealer almost as much as he resents the police. Getting to know a little bit about where jurors live tells you a little about how they live and what issues and challenges they bring to jury service.
Some jurisdictions allow individual jurors to donate their stipend to a local victims’ assistance organization. I like people who do this both as citizens and as potential jurors. Donating $10 to the local Child Advocacy Center is no guarantee that a particular veniremember is not crazy and incapable of hanging a jury. However, the donation indicates that the juror is civic-minded, and when you’re grasping at straws, that’s better than a non-civic minded juror.
Watch and listen
When the panel enters the courtroom to be seated, stop what you are doing, respectfully stand, and watch everything the members of the panel do. Pay attention to how jurors interact with each other as these relationships will continue through the week, and you need people who can work together in groups. Observe what jurors carry in their hands and how they are dressed. Jurors often bring reading material, which to the observant prosecutor provides some insight to their personalities. Most panelists will bring benign reading fare such as the newspaper, paperbacks, or popular magazines. Jurors reading the Turner Diaries or the Anarchist’s Cookbook probably get a big X by their name on my seating chart.
I love jurors who make the effort to get dressed up for jury service, especially if it is not their custom to dress up. We want jurors who will take their service seriously, pay attention, and follow the court’s instructions. Tee shirts, flip flops, and other casual clothing signals to me a lack of concern and respect for the judicial process. Inappropriate dress is a sign of a bad attitude or poor judgment, and neither is worth taking a risk. (I told you this isn’t science.)
Generally, I am looking for conformists who accept societal norms and expect others to do the same. Radical dress, hairstyles, piercings, and tattoos are signs that a person prides himself on being different and setting himself apart from the group—in other words, someone who could hang the jury. Prosecutors have the responsibility to seek out jurors capable of collective, cooperative action and give them appropriate facts on which to act. Observations about prospective jurors’ social skills can be telling and should not be overlooked.
Questioning the panel
Do not go straight down the rows asking the jurors to recite. Remember in law school when your professors did that? You zoned out when you knew it was not your time to recite. Jurors will do the same thing if you let them. Bounce your questions around the room and understand that you do not need to spend the same amount of time with each juror.
It is unnecessary to visit with every member of the panel as only the first 16 or 17 have a realistic chance to serve in a misdemeanor case. As you have now had the opportunity to observe the panel and read their information cards, you have started forming basic opinions about them and their desirability as jurors. Now is the time to prioritize how your time will be spent and on whom.
With some jurors, you will feel comfortable but need to ask a couple questions to justify your confidence. On the other extreme, some jurors will just rub you the wrong way. Loop back, returning to each of these jurors when seeking challenges for cause. I will return to jurors again and again until I either change my opinion of them or make a record justifying their exclusion. Jurors seeking the easy way out of jury service figure out what I am doing and know to say the magic words to be excluded. Good jurors also figure out the drill and know what not to say when defense counsel has them on voir dire. If more than four or five panelists appear to be challengeable, I know to question deeper in the panel.
I have been caught flat-footed a couple of times in cases where the court granted an unexpected number of challenges and left unquestioned jurors in play. Ask your judge to bring these jurors up to the bench so that both sides can ask a couple of questions. Try this even if you are sure that your judge won’t go for it. The judge’s disdain for hung juries usually overrides his desire to teach you a lesson.
For misdemeanor prosecutors, exercising peremptory strikes is more an exercise in rating jurors because you get just three strikes. In district court, I don’t always use all 10 strikes, but in a misdemeanor case, there will almost always be three potential jurors with whom you are not comfortable. This is the time to take a deep breath and remember this is not science—but it is not life and death either. Make the most intelligent choices you can, and live with them. Do not get paralysis through overanalysis. You will usually have the opportunity to visit with the panel after the trial; use it to evaluate your decision-making and improve your jury selection at the next trial.
Narrow the focus
My first district court judge, Doug Shaver, asked me after a drug trial why I bothered to voir dire on guilt-innocence issues when my habitual criminal defendant dropped two rocks of cocaine at the arresting officer’s feet. Judge Shaver advocated informing the jury that they were potentially serving on a drug case, then spending the remaining time discussing punishment, which was the whole reason the case went to trial. From then on I narrowed my focus when I selected juries.
Discuss the relevant issues to be contested in the case. Do not show the jury panel pictures of your children or tell them where you went to law school. A prepared prosecutor knows her case’s facts, can anticipate defenses, and can usually get the defense attorney to tell her about the issues and defenses simply by asking. If you are trying a DWI case and the defendant was initially stopped for speeding, do not waste time discussing “wheeling” the defendant if it will not be a contested issue. The assault defendant who gave the victim a black eye in a room full of witnesses set the case for trial for a reason other than “whodunnit.” Prepare to voir dire on the technicalities of self-defense.
Narrowing the focus of voir dire saves time to cover the appropriate issues in depth and properly focuses the panel’s attention. Plus, it creates time to visit with more jurors individually. Do not resort to row-by-row information gathering, as jurors will simply parrot each other. Ask simple, candid questions to individual members, and prepare to bounce their responses amongst the group.
Ask open-ended questions
Jurors must be engaged, and the best way to do that is to involve them in an interesting discussion. Ask open-ended questions that encourage complete, well-reasoned responses. It is not your job to lecture jurors. Get jurors talking early in the process, then become part of the discussion. Use this process to frequently involve jurors with whom you are uncomfortable. Ask provocative, open-ended questions that require more than one-word answers. Remember: You are teaching, yes, but your main goal is gathering information. Telling jurors the law is much less effective than having them verbalize the rationale surrounding the law.
I prefer to discuss legal topics by putting them in a public policy context. Rather than simply holding a poster board in front of a panel to discuss the elements of a crime, I want to know if veniremembers believe in the law and see the value in its enforcement. I want jurors to explain how various laws solve problems and affect their communities. Give jurors tangible examples that allow them to draw pictures in their heads. For example, I will sometimes put jurors in a legislator’s role and ask them to create a statute that fixes a problem. When explaining the law of parties, I become the getaway driver to my co-counsel’s bank robber.
Explore the law but also explore individual jurors’ reaction to it. How did the panel grasp the issues you discussed? How did you bond with the group? Use some of this time to assess the intelligence of individual jurors. Preparing the Allen charge is a bad time to find out that one of your jurors could not keep up.
Make challenges for cause
To conduct an effective and efficient voir dire, you must know why and how jurors can be challenged for cause. Article 35.16 of the Code of Criminal Procedure sets out the reasons that a juror can be challenged, but only a few scenarios occur with any frequency. Jurors may be excluded if they have a bias or prejudice for or against the defendant1 or if they have established in their minds a conclusion about his guilt or innocence.2 Additionally, a juror may be excluded if he has a bias or prejudice against any phase of the law upon which the State is entitled to rely.3
Always look for people who will raise your burden of proof, which is an automatic challenge for cause your judge should understand. Jurors may be challenged if they require more than proof beyond a reasonable doubt4 or if they require 100-percent certainty or proof beyond all doubt.5 Panelists may also be challenged if they require an element of proof beyond that required by law (i.e., jurors who wouldn’t convict without a breath test, more than one witness, or an eyewitness).
A juror’s bias or prejudice is established when a prospective juror is unwilling to consider and apply the relevant law. A bias exists when a veniremember’s beliefs or opinions prevent or substantially impair his performance of duties.6
To justify a veniremember’s exclusion, it is not enough to show the existence of a bias or prejudice. It is further necessary to develop that the juror has been shown proof beyond a reasonable doubt of every element necessary to be proven and that his bias or prejudice is an impediment to following the law. It is also necessary, before challenging a juror, to explain the law and ask if his personal views would interfere with following the law.
Let’s take a fairly common example: a juror who requires a breath test before he could find anyone guilty of driving while intoxicated. It is necessary to show more than the fact that the juror will require proof of an additional fact (a breath test). The record must also clearly show that the juror first believed that the defendant drove while intoxicated (having lost the normal use) and that the juror believed all of the elements beyond a reasonable doubt.
“Mr. Juror, you indicated that you would require me to introduce evidence of a breath test before you could consider convicting someone of driving while intoxicated. Do you understand that the law does not require me to show that the defendant took a breath test? So even if I prove to you beyond a reasonable doubt that the defendant was driving while intoxicated under a different theory of intoxication, you will still require me to produce evidence of a breath test?”
A potential juror who clearly expresses bias against a phase of the law is immediately challengeable for-cause and need not be presented for rehabilitation.7 If a juror equivocates, then both sides get the opportunity to make a record.8 Either party may challenge a veniremember regarding a bias against any phase of the law upon which either party may rely during the trial.9 Therefore, the State may challenge a prospective juror for his bias on an issue of law even if the bias would not harm the State.10
A juror may also be disqualified if a personal experience would prevent her from being fair. This challenge is also predicated on the juror believing all of the necessary elements were proven beyond a reasonable doubt, so make a complete record. The challenging party must demonstrate that the veniremember could not act fairly as a juror even when confronted with proof beyond a reasonable doubt because of a prior experience. Once this is established, the person should be discharged for cause.
Punishment is also a fertile area for challenges, as jurors must be able to follow the entire law. Jurors must accept that the minimum and maximum legal punishments are appropriate in some circumstances if the defendant is found guilty of the charge.11 If the defendant is eligible for probation, the jury must be able to consider that too. I do not run through outlandish scenarios with the jury panel where aggravated robbers are appropriate for probation. I tell the panel that considering the full range of punishment is simply keeping an open mind and that they do not have to commit to any particular punishment during the trial. Considering the full range of punishment is exactly that: giving it consideration. Make the panel understand that they are free to accept or reject any punishment as long as they at least briefly consider the full range.
Talk with jurors post-trial
Don’t ever pass up the opportunity to chat with jurors after a trial.12 First, it is the right thing to do, as they donated several days of their lives so you could try your case. Second, what better time to figure out where you screwed up in jury selection? Remember earlier when we were discussing developing instincts —visiting with jurors post-trial, especially when you lose, will hone those instincts.
Compare their post-acquittal demeanor with the way they acted during voir dire. Were you right about who the group’s leaders would be? Did jurors find compelling the same things you thought they would? Do not be judgmental or accusatory. Jurors are entitled to their opinions, and it was your job to prove the case to their satisfaction. Talk with jurors about the case’s deciding factors and gauge their understanding of the law. Your success as a trial lawyer will be based greatly on what you can make jurors retain until they finish deliberations. Do not pass up the opportunity to figure out how much they held onto.
Conclusion
Given the realities of how juries are selected, it’s amazing that prosecutors are as successful as we are. It is also proof to some degree that good facts make good cases. It is possible to learn enough about a panel in a half hour to make intelligent choices about who should stay on your jury. Milk every drop of meaning from the limited information you are provided. Spend more time listening and less time lecturing. And finally, know how to effectively challenge jurors for-cause.
It ain’t science, but with some preparation, strategic questions, and an eye on the clock, you can bring order to voir dire, which might otherwise be a study in chaos theory. i
Endnotes
1 Tex. Code Crim. Proc. art. 35.16(a)(9).
2 Tex. Code Crim. Proc. art. 35.16(a)(10).
3 Tex. Code Crim. Proc. art. 35.16(b)(3).
4 Coleman v. State, 881 S.W.2d 344 (Tex. Crim. App. 1994).
5 Butler v. State, 872 S.W.2d 222 (Tex. Crim. App. 1994).
6 Sells v. State, 121 S.W.3d 748 (Tex. Crim. App. 2003).
7 Howard v. State, 941 S.W.2d 102 (Tex. Crim. App. 1996).
8 Felder v. State, 848 S.W.2d 85 (Tex. Crim. App. 1992).
9 Phillips v. State, 701 S.W.2d 875 (Tex. Crim. App. 1985).
10 Guerra v. State, 771 S.W.2d 453 (Tex. Crim. App. 1988); Caldwell v. State, 818 S.W.2d 790 (Tex. Crim. App. 1991)
11 Johnson v. State, 982 S.W.2d 403 (Tex. Crim. App. 1998).
12 When talking with jurors after a trial, of course be mindful of Texas Disciplinary Rule of Profession Conduct 3.06(d), which states: “After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask any questions of or make comments to a member of the jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.”