Publications: For an Effective Voir Dire, Let the Jury Speak

Voir dire. It means, literally, “to speak the truth.” Most lawyers think voir dire calls upon them to speak to the jury when, in fact, they should let the jury speak to them. History is littered with the carcasses of vain trial lawyers who thought voir dire was their turn to talk.

There are four major goals to voir dire: information gathering, establishing rapport, education, and persuasion. Jeffrey T. Frederick, Mastering Voir Dire in Jury Selection (ABA 1999). We want to use voir dire to (1) gather information about jurors to make meaningful uses of our preemptory challenges and potential challenges for cause; (2) establish rapport with jurors to be more effective in gathering information and in persuasion; (3) educate the jurors and promote their understanding and willingness to adhere to legal principles, jury roles, and the law; and (4) persuade jurors to adopt our perspective on the case.

The first two goals are best accomplished by asking open-ended questions and letting prospective jurors talk. Consider voir dire to be a first date. You want to find out as much as you can about the other person; the best way to do that is to let him or her talk. You also want to make a good impression; the best way to do that is to let him or her talk. People are always interested in someone who is interested in them. You will make a better impression by allowing potential jurors to talk about themselves in a positive way than you will by trying to impress them by talking about yourself.

This technique also works in the education and persuasion aspects of voir dire. It takes more work to find open-ended questions that drive key points home with the jury in voir dire, but it can be done. For example, one of the defendant’s main concerns is always whether prospective jurors are willing to wait to hear both sides before they make up their minds. Try to address this issue by asking an open-ended question: “Who here has had the experience of being judged or accused without an opportunity to tell their side of the story?” Facilitate a discussion among potential jurors about such experiences, almost all of which will be accompanied by a feeling that they were treated unfairly. This addresses the issue and sensitizes potential jury members by allowing them to empathize with the plight of someone who was judged before he or she was heard.

The same technique can be used to persuade. The most persuasive comments in voir dire usually come from the mouths of prospective jurors themselves. Facilitate a discussion and get these jurors to bring your points out for you. Facilitating a type of “classroom” discussion also allows a lawyer to educate the jury by placing the lawyer in a position of authority as a teacher.

Keep in mind that voir dire is not only a process in which you choose the jury but in which the jury chooses—or decides not to choose—you. By talking less and listening attentively more, you can take a strong step in the right direction with your jury during voir dire.

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