The Blind Leading the Blind

One of the common questions asked on Texas criminal lawyers’ listervs is, “does anyone have a voir dire for a … case they could share with me?” (I’m reliably informed that prosecutors do the same amongst themselves.)

I have a friend—we’ll call him “Bill Bomble”—who had some experience in show business before becoming a prosecutor. Bill says, “voir dire is improv,” and he’s absolutely right: jury selection is an improvisational art. It’s not susceptible to scripting.

Here are some broad rules for picking a jury (at least in a noncapital case): pick  n<4 issues that you want to discuss with the jury. Figure out how to get the jurors talking about them (tip: start with getting the jurors talking at all). Once you get them talking, don’t lecture the jurors. Ask them questions. Not yes–or–no questions. Open–ended.

In a competent voir dire, the lawyer does 10% of the talking and the jurors the other 90%. Unless you distribute your voir dire script to your jury panel, they’re not going to follow it. They probably wouldn’t follow your script even if you distributed it to them. The objective is to get meaningful information and build rapport with the jurors. The script that worked with one jury will flop with the next. In fact, if it’s a script it probably didn’t work with any jury.

Following a script in jury selection is not possible unless you maintain control. There are times in trial for maintaining control (cross-examination, certainly) but jury selection, when you are trying to find out what makes the jurors tick and form them into a coherent group, is not one of them.

When you ask other lawyers for a voir dire for a particular kind of case, you’re announcing to those lawyers that you don’t really have a clue how to pick a jury in any case. But take heart: everyone who responds to your request by providing you with “a voir dire” is just as clueless as you.

0 responses to “The Blind Leading the Blind”

  1. The best voir dire I ever conducted happened after I tossed my notes aside. Opposing counsel identified four jurs who were on our side and I just let them educate the rest of the panel.

    I do think that asking other attorneys about some of the questions they asked can be a jumping off point if you really want to learn to pick a jury; or a crutch if you’re lazy.

  2. Good post, Mark.

    I’d be curious as to your thoughts on the effects of visual aids. I’m a Power Point guy, myself, and I always found that worked well for me. However, it did stick me with a script.

    I usually tailored each one to specific and important issues on each individual case, though, so that it would flow.

    However, having watched Bill Bomble pick a jury before, he is quite right about doing Improv. You should see him re-enact burglar alarm commercials during voir dire.

    Quite dramatic.

    • As in all other things, it’s better to have more tools than fewer, as long as you, instead of the tools, are in charge.

      I’m very much in favor of visual aids. The right pictures help us communicate, and can be perfect for getting us unstuck, but if we’re too married to the order we’ve decided upon beforehand, we are likely to miss opportunities. I haven’t used Power Point much, so I don’t know if there’s a way to access slides randomly instead of sequentially.

  3. I enjoy reading your blog. Recently, you discussed the unreasonable time limits some judges set on voir dire. Having a long written list of relevant, permissible questions is the best way I know of to get yourself longer than 30 minutes to pick a jury. There are numerous CCA cases that say that 30 minutes is insufficient time to pick a jury — but only if the defense objects, asks for more time and has a list of relevant, permissible questions. When I practiced in Harris County I always had a long list of quetions ready and I let the judge know prior to voir dire that their time limit wasn’t going to work for me and showed them why. The judges may not have lliked it but they didn’t cut me off. I agree that voir dire should never be read. You must use your questions to find out how the jurors really feel and you are right, that can’t be done by reading your questions.

  4. so how can I use this information to get out of Jury duty?

    I kid I kid!

    but seriously, how can I use this information to get on the Jury when really I just want to push for Jury Nullification?

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