IndyBar: The Most Valuable Voir Dire? What you need to hear vs. What you want to hear

By Christina Studebaker, Jury Consultant

It’s the first day of trial and a group of prospective jurors enters the courtroom. Regardless of the specific nature of the case, there’s bound to be a sense of anxiety at this point in the proceedings. Many jurors are anxious because they have never been in court before for any reason, they fear speaking in public (let alone answering personal questions in public), and they don’t know what type of case they might be selected to decide or the implications the decision might have on the parties and possibly the larger community. The parties may be anxious because they have decided to trust the resolution of their case to a group of community members that they know almost nothing about, and there is a degree of risk that comes with that.

Voir dire provides an opportunity for litigants and attorneys to reduce anxiety by excusing biased individuals and individuals perceived to be unfavorable or “risky” from serving as jurors. Unfavorable jurors are those with case-relevant attitudes or beliefs that may make them less sympathetic, or even resistant, to the evidence, themes and arguments on which your case is based but who fall short of clear bias that supports excusal for cause. “Risky” jurors include unfavorable jurors and jurors you know almost nothing about.

It cannot be overemphasized that voir dire is the one opportunity the attorneys and parties have to hear from the jurors before the final verdict is delivered. Be mindful of that and hear as much as you can from as many jurors as possible, whether the time provided for voir dire is 20 minutes, two days or two weeks. The information learned during voir dire will, of course, inform the parties’ actions regarding peremptory and causal challenges. In addition, it provides some insight about individual jurors ultimately seated on the jury, the overall composition of the jury and individuals who have a higher probability of serving as the foreperson.

Here are some tips to help learn as much as possible about jurors during voir dire:

• Assure jurors at the outset of questioning that there are no right or wrong answers; what matters is that their answers are honest.

The courtroom is an unfamiliar place for most jurors, and voir dire is an unfamiliar and unusual process for them. Consequently, jurors may feel uncomfortable and self-conscious. This can increase the likelihood of jurors providing what they believe are socially-desirable responses. That can take the form of answers that are common, intended to be unoffensive and/or agreeable with ideas presented by the questioning attorney or judge. The problem is that socially-desirable responses may not reflect jurors’ true beliefs. As jurors settle into their roles over the course of a trial, their true beliefs will emerge and influence their perceptions of the evidence. Expressly encouraging honest answers can increase jurors’ comfort with being honest. An additional step that can increase the likelihood of honest answers is assuring jurors that the attorneys will not be offended by whatever a juror says.

• Ask open-ended questions rather than Yes/No or leading questions.

The more jurors talk, the more you learn about them. You can learn not only what they think, but also how they think and experiences that helped shape the way they think. That information will allow you to make more informed and nuanced decisions about peremptory and causal challenges. In addition, it will provide a better understanding of the individual beliefs of the seated jurors and the array of beliefs present among the collective jury, and that can influence your trial strategy.

Yes/No questions provide very limited insight into the nuances and complexity of juror beliefs. Leading questions increase the likelihood of socially-desirable responses.

• Ask questions designed to help you learn about case-relevant attitudes and experiences.

Jurors’ perceptions of evidence, witnesses and overarching case themes is subjective. That is to say, their perceptions are influenced by their personal values, beliefs and experiences. Gaining a better understanding of case-relevant values, beliefs and experiences during voir dire is arguably the best use of voir dire. If voir dire is extremely limited, prioritize these types of questions.

• Be open to jurors possibly sharing negative opinions about your clients or your case.

Some attorneys worry that negative opinions shared during voir dire can contaminate the rest of the venire. But in fact, if jurors hold negative opinions about your clients or your case, voir dire is precisely the time to hear that information and then move to excuse those jurors. •

Christina Studebaker, PhD, is a litigation consultant with over 20 years of experience assisting attorneys with cases in state and federal courts across the U.S. She can be reached at [email protected].