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Monday, January 27, 2014

Voire Dire -- and the jury trial

Ever wonder how a jury trial really works? There are quite a few steps. In the next several articles, I will discuss a few really important aspects of jury trials. While we've been handling complex jury matters for years, we just finished (successfully!) a jury trial where the key elements really made a difference:
  • voire dire
  • jury instructions
  • the jury verdict form
. "Voire Dire" is French, and means to see and to speak. A slightly more easily digestible translation would be "to observe and discuss." Although "question" would be more appropriate, the French word for that is "demander" -- and certainly nothing close to "dire". So we're stuck with observe and discuss. C'est bon! You may have heard the terms translated as: "speak the truth" -- that is pure fiction.

Now, it is important to understand that you must get a good lawyer for a jury trial. Not only must your attorney be an excellent cross-examiner, he or she must be a good tactician. Jury operations are all about tactics. Subtle tactics. Understanding the nuances can make the difference between a sympathetic jury and one the clobbers you. So, be careful and choose wisely.

Voire Dire -- the art of selecting the jury

Calling the jury

Most courts work the same way, but in this example, we will discuss Federal court. Voire dire is initially conducted by the judge. Once all preliminary matters are resolved (before the trial starts), the judge will instruct the clerk to "bring in the jury." The jurors are ushered into the court and seated in the gallery (that's the area with the rows of seats -- in the back), generally in order starting with number one, with five per row (obviously, there are more if the rows are larger). The clerk will also hand each counsel a "jury sheet" which shows each the name of each juror, their juror number, profession, and perhaps a few remarks on demographics. There will also be a line by each juror name for entry of comments.

Initial Questioning by the Judge

Generally, several weeks before the trial a "pre-trial" hearing is held. During this time, jury questions are discussed between the parties and the judge. These are the initial questions the judge will ask the jury directly, and must be agreed to by the parties. During the day of trial, once the jury group is seated in the gallery, the judge have the clerk pass out index cards. As the judge asks the jurors the questions agreed to by the parties at pre-trial, each individual juror will enter the question number and a "yes" if any are true for that juror. The jurors will enter nothing if the question is false or not true. A typical question may be: "1. Do you know any member of the defense team?" or "2. Have you ever owned a business?". A juror would write: "1. yes" if he/she did know a member of the defense team, for example.

Questioning by Counsel

Once the judge has asked all the questions, the clerk will collect the index cards. The judge will call defense and plaintiff's counsels to the bench. Each attorney will stand on one side of the bench. The terms "bench" refers to where the judge sits. The judge will then call each juror by juror number, and ask them to explain his/her answer if a "yes" was given. The attorneys then have the ability to follow-up with their own questions based on the response the juror gives (in explanation) to the judge. The question is one of bias. The attorney wants to learn if there is any bias in the actions of the juror. Also, the attorney needs to get as much information as to motive and interest of the juror as possible. Make notes! Occasionally, a juror will say something that precludes him/her from serving. This is usually obvious. For example, in a DUI trial, a juror that states, "My mother was killed by a drunk driver." would be "struck" for cause. The term "for cause" is legal jargon for removing a juror because they are not appropriate or qualified to sit on the jury. There is a much better chance of a strike "for cause" being accepted if both attorneys agree, however, that is not a requirement. The judge will make the final determination. Once the jurors have been called forth, and questioned at the bench, and those ineligible to serve removed from consideration (for cause), the judge will send the attorneys back to their respective tables in order for them to formulate their peremptory strikes.

Peremptory Strikes

A peremptory strike is the removal of a juror from the list "just because." That is -- for no other reason than the defense or plaintiff's counsel seeks to do so. It is the legal method of stacking the jury. Removing those not favorable to your case. In a civil case, each side receives three peremptory strikes. In a criminal trial, usually the defendant receives 10 strikes and the state receives 6. These numbers are completely at the discretion of the each jurisdictions court rules, so be sure to verify them! A peremptory strike form is provided to each attorney. Thereon, the attorney enters the juror information, as well as demographics information of the jurors who are struck. This ensures that there is an no racial or gender bias in the selection of peremptory strikes.

How to conduct effective Voire Dire

The key to success is knowing the best profile for your jury. What type of case do you have? Is this is a sympathy case for your side? Then seek simple jurors who are family oriented, or females who are more empathetic. Is this a legal, business case where calculations are more valuable? Then seek the professional who is all business. Once you know the profile of the juror you seek, then ask questions at the bench that elicit the bias you seek. While you are respectful and honest in your questioning, this process is not about being fair. It is about stacking the jury with those most sympathetic to your case. Is this a land case? Strike jurors that are clearly large land holders (unless you want them to side with the land-owner!). You get the idea. The key is a thorough and clear understanding of your case, coupled with piercing "bias" questions at the bench.

Jury selection is critical to the theory of your case. Your opening statement and your closing statement will be given directly to the jury. You need to make eye-contact, and the jury must believe you, the attorney. Select jurors that bother represent the closest interest to your client's case, and also who relate to you as an advocate. When the jurors comes to the bench, smile at them. Be gracious and make eye contact. This is the first time you will have a chance to make them yours -- do not squander the opportunity.

Do you need help with an upcoming jury trial? Give us a ring! We've been doing this for a while and would be glad to handle your case, or consult on the jury selection process. Remember -- ~30% of the outcome of your case is decided in the proper selection of your jury. Another ~15% is decided by the proper instructions and verdict form. Do the math, folks. That is ~45% of your case decided before the trial starts. Be sure you have an attorney you can trust.

Sean R. Hanover, Esq
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