The Trump Impeachment in Voir Dire


Interesting voir dire question on Twitter, from a Gideon’s Promise (it’s a terrific program; if you have some charity dollars to direct, please consider sending them yeaward) alumna:

Just want your thoughts: During a Voir Dire in a very conservative area, would you use the Trump impeachment process in any way? Just was a thought myself and instead of fleshing it out for myself, I’m calling on you to weigh in.

My initial response was maybe a little snarky:

https://twitter.com/NoLongerBennett/status/1215829529400422402?s=20

Unhelpful, I know.

So let’s dig a little deeper into it.

What’s are the purposes of voir dire? In no particular order:

  • To find the people we don’t want on our jury.
  • To establish challenges for cause allowing us to remove those people without using our peremptory challenges.
  • To get a feel for the opinions that our jurors are carrying into trial.
  • To introduce our jurors to the major issues in our case.
  • To hear our jurors suggest resolutions to those issues.
  • To win jurors’ hearts—to build credibility, liking, attractiveness, charisma, and leadership in the jurors’ eyes.

“To change jurors’ minds” is not one of those purposes. The only belief that can be changed in jury selection is a juror’s belief about the lawyers’ inherent credibility—that is, her trust in the lawyers.

So, for readers from the distant future, a few salient facts: The President of the United States has the support of a segment of the population that traditionally has been hostile to the rights of the accused. But he has been impeached by the House of Representatives, charged with high crimes and misdemeanors—charges to which he has not deigned to respond. The members of the House of Representatives who have charged him belong to a segment of the population that traditionally has been less hostile to the rights of the accused.

So that segment of the population that is generally hostile to due process and the right to remain silent, in this case finds itself friendly to both; the segment of the population that is generally friendly to those concepts, in this case finds itself hostile to them (suggesting, for example, that the President’s silence is evidence of guilt).

Bearing that in mind, how does a defense lawyer use the President’s impeachment to her client’s advantage?

Support Trump is generally higher among Right-Wing Authoritarian (RWAs). And as a general rule, RWAs are unfavorable jurors for criminal defendants. That’s a lot of “generals,” but if you could select a single criterion on which to exclude potential jurors, right-wing authoritarianism would be a strong contender.

How do you expect these Trump supporters will respond to a discussion of the Trump impeachment? I expect that they will mouth words of support for due process. But juror selection does not change people’s minds. Trump gets every break, but your client gets none, and in the jury room these people are still going to look for reasons to convict your client.

So you’ve gotten no useful information, and have failed to develop a challenge for cause against any of the people whom you should most want to eliminate (unless you’re representing a cop—different rules apply then).

How about people who dislike Trump? How do you expect them to react? They may, in the context of that discussion, show negative attitudes toward due process. Again, you are not changing their minds. Trump doesn’t get the benefit of the doubt that they would give your client.

So you’ve gotten no useful information, and may have developed challenges for cause (which the State will surely use) against the people whom you should most want to keep on your jury.

Have you introduced jurors to the major issues in your case? Have you heard their suggested resolutions to these issues? Doubtful. The issues in the Trump impeachment are not your issues, and if “right to remain silent” is going to be important to your case you’ve heard bizarro-world opinions from everyone who has strong feelings about Trump.

So how about winning the jurors’ hearts? With whom do you build rapport by talking about divisive political issues? If you take a side, the zealots on the other are going to hate you. And if you don’t take a side, everyone is going to hate you—the zealots on both sides, because you aren’t sufficiently zealous for their cause; and the people aren’t zealots, because you’ve forced them to listen to this nonsense again. I don’t know the questioner’s politics, but an indigent defender in a highly conservative area is likely less conservative than most of the jurors in the room.

Well, what if you do it, y’know, sneakily:

Yes. I think you need to be subtle about it though. Maybe try the “biggest legal proceeding in the news right now” angle, just so it doesn’t sound like you’re deliberately invoking politics.

That, from a public defender, illustrates why you don’t ask for voir dire advice on Twitter.

Jurors do not like being tricked. If you try to deceive them (“make it sound like” you’re not doing something you are obviously doing) they will punish you for it. They will shut down on you when they realize it, and they will take away you credibility. They may even punish you for it by punishing your client.

Every lawyer should have a group she can bounce voir dire ideas off of. This doesn’t have to be the blind leading the blind. Lots of lawyers with lots of voir dire experience and study are quite willing to share with the less experienced. (I think this willingness to share coincides with voir dire ability, since what a lawyer needs to demonstrate in voir dire is beneficence + competence, which she may do by sharing knowledge.)

Such lawyers are on Twitter—my brilliant friend Jordan Lewis, for example, shows his chops with this thread (in response to the same question) warning that invoking politics may alienate jurors:

Or my new friend @jkelleman, who notes that otherwise-bad ideas might be good ideas if you acknowledge their apparent badness (“pulling back the curtain“):

https://twitter.com/jkellemen/status/1216023526496325632?s=20

These experts just aren’t in the majority of lawyers who think their opinions will help you. And if you’re asking for advice, it’s hard to tell the difference between lousy advice from someone who has picked maybe a few jurors, and excellent advice from someone like Jordan who has picked many.


5 responses to “The Trump Impeachment in Voir Dire”

  1. This is actually a huge issue in a public defender office. Many of the best defender offices are in very “woke” places. As appellate squawk made clear, those offices can have, well, some problems having empathy with those that don’t share their woke tendencies.

    I subscribe to the judge kopf view that good criminal defense attorneys care, great defense attorneys pretend to care. Many attorneys get stuck in caring. In “trial psychosis”. And then they are egged on in their psychosis by their coworkers.

    Coworkers, who, like the lawyer, are smart, potentially even ivy league level smart, but also ivy league level indoctrinated.

    I’m groups like that, it isn’t rare to see the idea of “Colorado style” death penalty only look for the crappy jurors voir dire. And to the extent they come up with other ideas, it is in the style of “let’s subtlety ask about Trump to get rwa on our side” ( as an aside, I had a death threat case where only two jurors who hung the thing we’re a federal law enforcement officer and a cps social worker…so the actual answers to questions and your gut instinct matter)

    If you can’t step back and understand your “enemy” you also won’t be likable to people who aren’t like you.

    I’m a fat white autistic nerd. But I tell jury I am “nervous” and can’t eat during trial (with maybe fat joke) and make them respond outloud with a good morning, and actually listen to them, and they are eating out of my hand.

    (Also, jkellemen, no A’s)

  2. Eh, make is, perhaps, a strong word. So prosecutor gets up and fecklessly does the “who was excited to get their summons” and “who here hates (insert crime) and tell me more”

    Which bores the shit out of those 50 people. I get up, with my absent minded professional/bumbling shtick, and in a genial but booming tone say good morning. A third of the panel will respond, and I will very exaggeratedly motion for a response from the rest.

    This primes them to follow. It primes them to respond. And I hit them next with the share about not eating.

    Reciprocity. I’ve shared, so now they feel like they should share with me. Also allows them to see me as something other than a shark. And it is at least different than the (more blatantly) canned opening round of the prosecutor.

    Doing a cold read, someone is going to say that jury duty makes then nervous as judging/deciding guilty is a hard thing. I use this as my jumping point into my canned first round of voir dire where I do a civics quiz about why juries vs Euro style inquisitorial system, why no comment on evidence, right to silence, etc.

    And because they are now primed to talk and feel obligated to share back, I will get both the good themes of high burden out while also getting the hangmen to talk so I can mark them for a strike.

    I’ve tried things both with and without the good morning bit. I get a much livelier panel if I go through this bit than when I don’t. And liveliness is necessary both for Colorado and for cold reading.

  3. I’ve been looking for the right case involving snitches to use some Trump video. It’s on Youtube.
    In the piece, Trump talks about how dirty snitches are and how they lie and lie to please the prosecutors and get a better deal.
    What makes it fun is that because Trump is president, in federal court it’s an admission by a party opponent. If the president can’t speak for the United States, who can?

  4. Mr. Bennett,

    I found your blog while looking into CCW legal-insurance plans. Then I went on to read your post on how foolhardy it would be to bring up the Trump impeachment during voir dire.

    Your thinking is so clear and you communicate it very well.

    If you have any more information that you can share regarding CCW legal insurance, please let me know. I have worked in criminal defense as an investigator for more than twenty years, and have had several clients whose insurance companies underwrote their defense. It wound up being very helpful to them. But the CCW-themed insurance products I have looked at look like garbage. I’m doing this to try and help a group of friends, in my new home state of Florida, who are hardcore concealed carriers but have unrealistic notions about the legal consequences of drawing or firing a gun.

    Thank you

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