Voir dire is a French term meaning “to see to speak” and refers to the process of questioning prospective jurors by a judge and attorneys in court. Voir dire is used to determine if any juror is biased and/or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve.
“Voir Dire” also refers to the second stage of jury procedure and is the process by which the court and the attorneys narrow down the pool of juries to the 12 people that will decide the case. Creating a fair and impartial jury for your client’s case is not always easy. There are many things to consider before, during and after the voir dire process.
In general, some of the key points to remember about the voir dire process are:
- Counsel cannot and does not select jurors; counsel deselects jurors.
- Effective voir dire begins long before entering the courtroom.
- The fundamental purpose of voir dire is to enable counsel to gain knowledge to make educated decisions about jurors whose biases interfere with their client’s case.
- Voir dire, when conducted effectively and skillfully, is one of the most important aspects of a trial. It is frequently overlooked and neglected.
- Avoid deciding what issues to voir dire too far in advance of starting the the trial. Your thinking or motions before the judge may make some questions irrelevant.
- Your jury should have a balance of dominant, passive and flexible personalities.
- When deciding which jurors to retain and which to excuse, consider the following:
- Rules of jury selection are guidelines and have expectations
- The well developed and objective judgment of an experienced trial lawyer should be given precedence over rigid adherence to voir dire rules
- If challenges are available and you have serious doubts about a potential juror, consider how that challenge will leave you vulnerable if someone less desirable has the chance to serve
- If two jurors appear equally unsatisfactory, you should dismiss the one more likely to play a leadership role in deliberations
- When questioning potential jurors you have to work against ideal psychological conditions. Conditions may inhibit self-disclosure or the discussion of intimate topics. To combat this, provide something personal about yourself or describe what is expected of the jurors to provide a model of self-disclosure and to overcome such difficulties.
- Self-disclosure by the lawyer can be extremely valuable to jurors; let them know your thoughts and feelings. It equalizes the relationship between you and them while providing a foundation for the relationship.
- If the case will be long and you will be sharing trial responsibilities with another member of your firm, the one who will sum up the case is the one who should select the jury.
- A juror’s manner of speech and nonverbal behavior are revealing.
- Look in the mirror when rehearsing a question. Do you look sincere? If not, do not ask the question.
We hope this overview of the voir dire process should assist you in your next jury trial.
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