VOIR DIRE: Picking who hears your story

Litigation Persuasion InstituteErnie Lewis

October 2004

What barriers did you see? Look at jury

selection from the eyes of the citizen sitting there

What happens after the judge and prosecutor talk to the jurors?

How will jurors respond to these barriers?

How do we respond to new situations?

How do we respond to authority figures?

How does this apply to jury selection?

WHAT IS VOIR DIRE ABOUT?

Cat Bennett & Robert Hirschhorn

“Openness, flexibility,and courage on the part of attorneys are what make communication during voir dire and trial accomplish your aims . . . Developing skills of relating, educating, and persuading in voir dire and elsewhere is the touchstone of strong advocacy.”

Michael Stout

“The goal of voir dire is to promote communication among all participants. However, when prospective jurors are bludgeoned into agreeing with concepts they’ve not considered, are asking to judge their own prejudice by raising a hand, and are discouraged from divulging true attitudes about issues they will decide, that goal is thwarted.”

Purposes of Voir Dire Get jurors talking Introduce your theory Inspire jurors to care about your theory Find jurors who can hear your story Humanize Client Introduce yourself and establish rapport Exercise Peremptories Challenge for Cause Educate Jurors

Voir Dire and Storytelling

“Effective storytelling motivates jurors to accept your theory of the case, introduces or reinforces the various themes of your case, and begins the process of making it comfortable for the jurors to say ‘not guilty.’”

Steve Lindsay

But...

The best story will not be heard if the people hearing the story cannot hear it.

Importance of Voir Dire

Primacy: it is the first thing the jury sees

Primacy: it is the first time the jury hears about your theory

Primacy: it is your only opportunity to hear your jurors speak

So What?

DO NOT WASTE IT

Know the rules that govern the selection of the hearers of the story

The legitimate topics of voir dire Number of peremptories Procedure for making challenges How far can you go on rehabilitation? Batson Time limits Preservation

Know the Lay of the Land Know the judge’s practice Watch trials Talk to other lawyers Ask the judge what she

expects Know whether you can ask

specific questions of jurors Find out as much as

possible about the jurors Find out about the history

of this group of jurors

Litigate Your Conditions Do not accept restrictive

voir dire conditions Move for additional

peremptories Move for a questionnaire Move for individual voir

dire Powers v. Ohio, 499 U.S.

400 (1991): Voir dire “is the juror’s first introduction to the substantive and factual legal issues in a case.”

Different ways of thinking about voir dire

What is your frame when you think about voir dire?

What mindset do you have going into jury selection?

How does your mindset effect what happens?

The Leadership Model You are there to

establish yourself as the leader

Winning a jury trial is about who the jury is going to follow

This model focuses too much on the lawyer

The Singles Bar Approach “What ideally is nothing

more than a structured conversation, jury selection has been transformed unnecessarily by many of us into a ritualized, stilted, lecture/cross-examination.”

“Conduct your jury selection the same way you would conduct a conversation with an individual you meet at a bar and want to get to know better.”

Rick Kammen

The Group Job Interview “Behavior based

interviewing in the workplace is based on the concept that past behavior predicts future performance.”

George Sornberger

Another way to think: A storyteller choosing her audience

This focuses on the theory of the case

It places the story at the center of jury selection

It focuses on the jurors It places persuasion and

communication front and center

Communication Style of the story-teller

Give up control to the juror Take advantage of primacy and recency No legalese or jargon Use simple language Do not lecture Do not preach or try to change the juror Be yourself

The storyteller uses a conversational tone Eliminate social

distance Don’t behave like

an authority figure

Establish rapport Self-disclose

The storyteller uses open questions

Who What How many Where Not: “do any of you

feel…” Not: “does anyone

have a problem with the presumption of innocence?

The story teller listens and responds The more you

talk, the less you will find out

Don’t just listen: Be an active listener

Learn, don’t teach

The storyteller asks for clarification and reflection

“Can you tell me more about that?”

“I am hearing you say that you would want to hear Johnny’s side of the story. Am I hearing you correctly?”

WHY? This is the best

question for a follow-up

Use silence also to ask why

The storyteller creates an environment where feelings can be expressed

An atmosphere where people will talk

Do not punish for “bad answers”

Empathize Acknowledge their

concerns

The storyteller uses appropriate emotion Reduces distance There is

congruence between the subject being discussed and the emotional response

This builds trust

The storyteller must be honest and have integrity The jury will

sense this The jury will never

forgive a lie Your emotions

must be consistent with your message

The storyteller must communicate respect

How you listen The language you use How you respond to

their self disclosures How you handle

private matters Whether you argue or

judge Whether you waste

their time

Other issues to consider when deciding who gets to hear your story

We have looked at how the storyteller communicates through questioning

We now look at the content of the communication

You must prepare voir dire This is “hard work” These are structured

conversations Plan your topics Plan your transitions Plan your beginning

and ending Practice

Set your questions into context Consider a mini-

opening statement Set into context into

context Example: “The issue in

this case is mistaken identification. What facts are important to you in deciding whether someone has been wrongly identified?”

How many topics

2-3 major topics Focus on your theory of the case Take out the sting Example: “Billy is going to testify in

this case. He has been convicted of a felony before. How will you respond to his testimony knowing this fact?”

Broad to Narrow Use for sensitive topics Broad: “What problems does our county face

regarding the issue of race?” More Narrow: “How do you feel about the

recent acquittal of the police officer accused of shooting a person in the back?”

Narrow: “How have you experienced discrimination in your life?”

As you narrow your questions, respect the juror’s privacy. Offer to go to the bench.

Use a Questionnaire It will save time Jurors will write

what they won’t say

Allows for follow-up Make it short Try to get an

agreed upon questionnaire

The Scaled Question

“People have a right to use a gun to defend themselves. Do you strongly agree, agree, somewhat agree, strongly disagree, disagree, or somewhat disagree?”

“People who are charged with a crime should tell their side of the story. Do you strongly agree, agree,….”

Some people say this, some people say that Similar to the scaled question Allows the person to place them in between

two extreme positions Distances you from either position “Some people say that psychiatrists hired by

the defense will testify based upon who pays them. Other people say that psychiatrists are scientists who will testify to what they see. Where would you place yourself between these two positions?”

Behaviorial Interviewing Question “The best prophet of the future is the

past.” Behavior based interviewing asks jurors

to tell about a situation they have experienced.

“Describe a time when you were afraid?”

“Can you tell us of a time when you felt peer pressure to change your mind?”

Do not stereotype Stereotyping is

useless Peel the onion

instead

Do not choose a jury alone Use a professional

if you can Use someone

intuitive Have notes taken

of all statements

Allow jurors to educate one another Do not

concentrate on 1-2 jurors

Bounce ideas from 1 juror to another

Use “looping”

Try to talk with each juror Do not

concentrate on one or two jurors

Each juror must be questioned on your most important areas

Call Jurors by Name Use a seating

chart Use last names

Confront Problems “I noticed that you

smiled when I said that. Can you tell me what you were thinking?”

“I feel like you have problems with what I am saying. Can you tell me more about that?”

Pay attention to your client Introduce your client Refer to your client

and his family: “Does anyone know Jim, he graduated from Madison High, his father Joe works at the Post Office…”

Consult your client during jury selection

Hirschorn’s 30 Minute Voir Dire

Introduction: 30 minutes Overview of Case: 3 minutes Strong Topic: 5 minutes Areas of Concern: 10 minutes Strongest Topic: 8 minutes Conclusion: 2 minutes

Other

Don’t “take” anything from silence Don’t argue with jurors Don’t have jurors promise you

anything Don’t ask jurors to keep an open

mind Don’t ask jurors to be fair and

impartial

Striking for Cause

Broad to narrow Ask why the juror feels that way “You have a strong opinion” Anticipate and close all doors Use closed ended questions only

There is no Magic Question

“There is no ‘magic’ in the ‘magic question.’…The messagefrom this decision to the trial court is the ‘magic question’ does not provide a device to ‘rehabilitate’ a juror who shouldbe considered disqualified by his personal knowledge orhis past experience, or his attitude as expressed on voir dire. We declare the concept of ‘rehabilitation’ is a misnomerin the context of choosing qualified jurors and direct trialjudges to remove it from their thinking and strike it from their lexicon.”

Montgomery v. Commonwealth, Ky., 819 S.W. 2d 713 (1992)

Areas of the law Your legal theory Presumption of

Innocence Reasonable Doubt Right not to

testify Unanimous

verdict

“Strangers, each with unique biases, are called by the government to a strange formal place to talk with strangersin front of strangers about strange subjects. In such a setting they cannot be expected to express easily theirpersonal feelings. You must take the first step toward effective communication during the selection process.By treating the strangers as individuals with distinct attitudes and opinions about which you would like to learn,you will find that the strangers reciprocate by becomingmore open and that your decisions about them are basedon more accurate and more revealing information.”

Michael Stout