Voir Dire plays a central role in the legal system in ensuring the fair and impartial administration of justice. Central to the jury selection process, Voir Dire is an integral part of court proceedings and the court system as a whole.
In this guide, we outline the concept of voir dire – what exactly it entails, its history and its meaning. We will also explore the impact of voir dire on the outcomes of court cases and discuss some tips and strategies for conducting voir dire effectively.
What does voir dire mean?
The simplest voir dire definition is the interviewing of potential jurors during the jury selection process. Questioning is primarily conducted by the attorneys to prospective jurors from the jury pool—although the judge may ask questions of the jury.
Story of Voir Dire
The practice of voir dire dates back centuries.
The term itself means “to tell the truth” in Anglo-Norman, a dialect of Old French. In the 1760s, William Blackstone discussed voir dire in his Commentaries, describing the right to challenge juries “propter affectum” on suspicion of bias or partiality. Blackstone hailed the practice as part of the greatness of English law.
“Voir dire” is just as important in the American legal system today. While the ultimate goal of voir dire is the same as it was 250 years ago, it is important to apply modern voir dire strategies to the modern era.
How does Voir Dire work?
In American jurisdictions, the details of the voir dire vary from state to state and between state and federal courts.
However, many elements of the voir dire process align with the following:
- Generally, each prospective juror has completed an initial questionnaire with some basic information about the person.
- When the jury is called into the courtroom for “voir dire,” the attorneys’ job is to interview prospective jurors to assess their qualifications, attitudes, and biases.
- The judge moderates the process and often participates in the questioning.
A lawyer can pursue different strategies in his questioning. You can ask open-ended questions or hypothetical scenarios. You can try to elicit personal anecdotes. All of this is done with the goal of uncovering the true opinions and attitudes of potential jurors.
While attorneys aim to achieve transparency, they must also guard against possible deception by potential jurors.
Attorneys can disagree with potential jurors in two ways:
- challenges for good reason; And,
- Compelling Challenges.
Challenges on cause are made on grounds that the prospective juror is unfit to serve on a jury. If the judge agrees with the basis of the challenge, the prospective juror is excused. Each side also has a certain number of mandatory legal challenges that can disqualify a potential jury without requiring judge’s approval.
Strategies for an effective voir dire
Conducting voir dire is a difficult task that is often both an art and a science. Nonetheless, there are several strategies that a lawyer can use to obtain an effective voir dire.
By the time you enter the jury selection process, you should already have a solid case analysis. This means that you know the test topics, the critical issues and the weaknesses from your customer’s perspective. This allows you to consider the types of jury biases that are likely to affect their view of the parties and the case itself.
One way to improve your case analysis is to implement practice management software like Clio Manage. By keeping all your case-related materials in one place that all team members can access remotely, you benefit from streamlining day-to-day work. When these details—calendar, document management, task management, and other important functions—are handled smoothly, it’s easier to focus on the real thing.
With your case analysis, create your voir dire questions in advance. Even if your wording isn’t precise, you should at least clarify the issues you need to cover. Think of any issues that will have an emotional impact on the jury, and determine what attitudes and beliefs will increase or decrease that impact.
Researching potential jurors
Lists of potential judges in the jury pool should be used to conduct as much research as possible.
For the research itself, paralegals and litigation consultants should be consulted if necessary.
Social media can be a treasure trove of information, revealing important factors such as occupation, social attitudes, and causes that the juror identifies with or objects to. Technology can greatly aid in this process, especially given the time constraints of the jury selection process.
Also use the information from the questionnaires of the potential jurors. These offer the opportunity to use your survey time more effectively. Additionally, you may be able to identify potential challenges as the root cause.
Build a relationship with the jury
Voir dire is basically an interview process, but ideally it shouldn’t feel like an interview or an exam. Instead, the trial attorney’s goal should be to initiate conversations and develop a relationship with the jury panel.
In short, get the potential judges to loosen up and start talking, an approach that’s more likely to result in candid answers.
Also, be sure to space out your questions so you don’t just focus on one or a few potential judges. You can also start with group questions and then drill down to specific judges to elaborate on their answers. This keeps each member of the jury on their toes so they don’t back down or switch off, while also making the entire voir dire “talk” feel more natural.
Keep in mind that the relationship you build here will likely be helpful during the process itself. You want the jury to perceive you as likeable and trustworthy. Therefore, avoid arguments and minimize any negativity during your exchange. Also note that this is an opportunity to brief the jury on your theories on the case.
Use open-ended questions
Another key element of an effective voir dire is the use of open-ended questions. You want to create an atmosphere that encourages the jury members to talk. This means avoiding closed-ended questions that require one-word answers, such as: B. “Yes/No” or “Agree/Disagree”. Instead, ask open-ended questions that require narration and explanation from the potential judge.
challenges and considerations
Voir dire has some unique features that make it a challenging aspect of the legal system.
Balancing customer advocacy with jury fairness
While you have a duty to be a diligent advocate for your client, a lawyer must also consider some aspects of jury fairness. If your opponent raises a valid cause of challenge against a clearly biased juror, it may not be in your interest to vigorously oppose the challenge. The entire legal system has an interest in maintaining jury fairness, and the judge may not approve of your unreasonable stubbornness.
Achieve diversity in the jury
Note that compelling challenges cannot be used to specifically disqualify jurors of a specific race, gender, ethnicity, or other protected classification.
Therefore, if your categorical challenges are consistently directed at jurors of any race or gender, you should be prepared to state your legitimate reasons for those challenges. The jury statements you get in voir dire should help you with that.
Effects of Technology
As mentioned above, using social media and online platforms to gather jury information presents a great opportunity for trial jurors. However, it also presents some challenges and ethical issues.
Make sure the online research does not involve any communication with the judges. Even if a juror only gets a notification that you’ve viewed their social media profile, this could lead to nasty problems. Use online research for your jury pool, but make sure it remains discreet and non-invasive.
Time pressure is also a challenge for voir dire. Potential jurors often have little time to conduct their research. The jury pool list may not be available until a few days before the hearing, and in some cases will not be available until the voir dire begins. This can put a significant strain on your exam preparation.
Legal Technology can be of great service to you. With the right software, you can store your jury information in one place and access it from anywhere, making it easier for the legal team conducting jury research.
Final thoughts on voir dire
“Voir dire” is an integral part of jury selection, so trial attorneys need to understand it well. This means that you know how the process works and what are the best strategies to carry it out effectively. This also includes being aware of some fundamental challenges at Voir Dire, both logistical and ethical.
As the legal landscape evolves, voir dire can only achieve its goal of upholding the principles of justice if legal practitioners are aware of current issues and future trends in the field of voir dire. Therefore, it is important to stay up to date on these topics and trends. Some excellent strategies for achieving this goal include subscribing to fresh legal industry content, such as: B. Clio’s, or attending legal conferences such as ClioCon.
We published this blog post in July 2023. Last update: .
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