In states where voir dire is more than just a judge reading off a list of questions and potential jurors robotically answering “yes” when asked if they can be fair and impartial, mastering the skill of talking to jurors is key to winning a trial.
I’m convinced that no matter how good (or bad) your case, if you pick the right panel, you can win the worst case in the world (or lose the best.)
So, how do you empanel a good jury? In large part, it depends on your case.
Know your defense. If your defense is consent in a rape case in this #metoo era, it’s my theory that middle-aged to older jurors might be more amenable to the idea that women can send mixed signals. In other words, there’s a possibility that even though a person claimed she was raped, the man didn’t intend it.
If your case involves an alleged drug sale, you’ll want people who’ve worked with drug addicts and who see shades of gray as opposed to people who automatically associate drug use with crime. If the juror has drug abusers in his family, watch out, unless you can ask further questions. Some people harbor deep grudges against family members with drug issues because it generally affects the entire family.
If your defense is “the cops are lying,” put on people who loved the podcast “Serial,” but no one who spent their summers at backyard barbeques with Uncle Fred, the local cop. (Ask the potential juror how close they are with relatives who are police.)
Never pick jurors who live in the immediate area of the crime, especially violent crime. They’re looking to keep their neighborhood safe and might bend the burden of proof just to do that.
Age, profession, race, and gender all come into play in determining who best to seat. Men might be more receptive in a self-defense, barfight case. However, more significant than gender for me is profession. Accountants are good when you need people who work with precision data and the People’s proof is based more on hype and fear than forensics.
In a tough case, where your client may have technically committed the crime but there’s an issue of interpretation of the law, you want to find jurors who can empathize with your client, people in the so-called helping professions like teachers, nurses, or social workers (who the prosecutors inevitably kick off.) If they like your client, they might want to interpret the law in his favor.
A variety of ages, races, genders, and professions is helpful. They’re more likely (if each has a strong perspective) to debate and not immediately form coalitions. Remember, you’re picking individuals who will be part of a panel. You’ve got to consider the group dynamic.
That said, if your case is dead in the water, you’ll want to seat someone who’s a complete wildcard: the astrologist (we get a lot of that in NYC); the guy who looks like ZZ-Top and loves Sponge Bob; the surfer dude (real case) who, when the judge asks if he can be fair and impartial, says, “Abso-f*cking-lutely.”
Many say the process of voir dire is a about deselection rather than selection. Kick off anyone who gives you (or your client) a bad vibe; whose body language tells you they’d rather be getting their teeth drilled than sitting in court. I had one potential juror tell me he couldn’t be fair and impartial because his new puppy had diarrhea. The judge said he had to stay, but I kicked him.
Picking a jury is a strategy game, like chess. The prosecutor is watching your every move to help her figure out who to eliminate. If you draw out a person, the more likely the prosecutor will kick him off. So a reverse strategy involves speaking at length to the person you don’t like. Often prosecutors will then strike that person, thinking you’ve created a rapport that would lead him to favor your case. This approach helps goad the prosecutor to use her pre-empts instead of you having to use yours.
Most important is to engage the jurors in conversations. Do not ask lawyer-type questions that hint only obliquely at the worst points in your case. Instead of saying, “If you don’t like my client, will you find him guilty?” ask, “When my client takes the stand, you’re going to learn he has two prior violent felony convictions. Is that going to make you believe he committed this one, too?”
I don’t like open-ended questions that put potential jurors on the spot. Asking the panel, “Can any of you give me an example of why someone might make a mistaken ID?” might bring on dead silence and bored looks. Most judges set a time limit on voir dire and wasting a question hoping for a good juror response will lose you precious minutes. So on an ID question you might want to educate the jurors yourself: “The mind doesn’t work like a camera, do you agree?” “Who here thought they remembered details about something, that turned out to be completely wrong?”
Another approach is to go watch a person do it well. Next time a skilled attorney’s in the courthouse doing voir dire, go watch, take notes, and pay attention to style and subtleties in phrasing.
While voir dire is an art not a science, and some people come to it more naturally than others, everyone can pick up tips and learn to improve.
Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.
How You Pick A Jury Can Make (Or Break) Your Case curated from Above the Law
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