What should be the purpose of voir dire?

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The Constitution protects our right to an impartial jury.  But actually producing an impartial jury from among our peers can be challenging, especially given how attorneys and judges are trained.

We often think that the purpose of voir dire is simply to identify biases. But this isn’t altogether true. We all operate from the perspective of our experiences and attitudes. In other words, we’re biased by nature.  The question we must get jurors to answer is to what degree.  We need to determine whether or not jurors are so biased regarding a particular case that they won’t be able to deliberate the evidence objectively.

In a decision that was no doubt controversial, it was determined that the six police officers involved in the April 2015 death of Freddie Gray will stand trial in Baltimore, at least for the time being.

Baltimore City Circuit Court judge Barry Williams said that moving the trial before jury selection even began would be premature. “The citizens of Baltimore are not monolithic,” he wrote. “They think for themselves.” In other words, despite the protests and riots which have cost the city millions in expenses, Judge Williams wants to give the citizens of Baltimore the benefit of the doubt. If during the process of selecting jurors it becomes evident that an impartial jury would be unlikely, Judge Williams left open the possibility of revisiting his ruling.

This is no doubt a blow to the defense. Nevertheless, voir dire provides the defense an invaluable opportunity to demonstrate whether or not their clients would get a fair trial in Baltimore. To take advantage of this opportunity, however, voir dire must be used to its full potential. Here are four guiding principles that will help facilitate the best use of the voir dire process:

First, closed-ended questions reveal absolutely nothing. To know, or at least get a firm sense, of the state of mind of potential jurors, it goes without saying that open-ended questions are the only questions that elicit a response that can be trusted. Jurors are generally apprehensive about sharing their true feelings during the jury selection process. Therefore, they inevitably give an answer they believe to be the most acceptable socially. But when asked open-ended questions, it’s more difficult to hide the true nature of our thoughts and feelings. In fact, if we follow-up an open-ended question with another open-ended question in an effort to seek further clarification, then we’re able to increase the probability of learning what is in the heart and mind of jurors. This process forces jurors to reveal what they really think. Yes or no questions simply fail in almost every material respect in discovering the degree to which jurors are biased.

Second, throw out the script. Now is not the time to be scripted. This part of the process requires flexibility. Attorneys need to engage jurors as much as is possible in a frank conversation. They need to be able to think on their feet so that when asking another follow-up question is warranted, it is asked at the right time and in the right way to elicit the most honest response.

Third, follow the 80/20 rule. In fact, over-achieving at this time might be a good idea. There’s nothing wrong in allowing the jurors to speak 90 percent of the time while the attorney speaks only 10 percent of the time. This is the opportunity to really learn about the jurors. Don’t miss or mess up this opportunity by sucking up all the air in the room. Remember: if they’re not talking you’re limiting yourself on what you can learn about them.

Fourth, use this opportunity to develop rapport with the jurors. At the end of the day, this may in fact turn out to be your jury. Make them feel safe. No one likes to be manipulated, belittled, or judged. Avoid speaking condescendingly. Help the jurors to feel relaxed and comfortable speaking about their true feelings regarding their perceptions and opinions. This process is less about the law and more about people. You’re attempting to help the jurors understand that it is in their best interest to be open and honest.

Now there are of course exceptions to these rules. Certain judges prohibit a thorough voir dire process by limiting the time spent on it as well as the kind and number of questions that can be asked. This is in part the fault of attorneys for focusing too much on the case during the voir dire process and not enough on the jurors themselves. Therefore, for some judges, all they require is a yes or no response to the question, “Can you be objective in this case?” This is unfortunate and can make producing an impartial jury less likely. Nevertheless, implementing as many of the above principles as possible will enable attorneys to be more effective in identifying a jury that will deliberate the case more objectively.