Jury Selection: Deselection and an Open Mind
November 12th, 2019
Contributor: Kevin P. O'Keefe
Be a Human: Listen
Many attorneys have told me they are intimidated by panel voir dire. I found this interesting because I have seen so many jurors intimidated by overbearing attorneys before the trial even starts. First, the process of panel voir dire is best described as lawyers having a conversation simultaneously with at least 20 people. That sounds like a romantic comedy speed dating scene that ends with embarrassing disaster. When done well, voir dire should be a conversation not a lecture nor a transparent prelude to your client’s case.
Voir dire is actually not that different from a first date. It’s probably not a good sign if one person is doing all the talking. The way someone looks at you can tell you far more than a verbal response. It’s impossible to change someone’s core beliefs or values in the first few sentences you utter in their direction.
Instead, jury selection is about deselection. It is not about finding 12 unknown people who will agree with your assertion that a person accused of a heinous crime would have every innocent reason to avoid the witness stand (although that may be a necessary topic to explore).
The Art of Deselection
Deselection starts with attorney humility. Inviting and attaining harmful information from jurors through fair, non-leading questions is invaluable. Most people, and thus most jurors, are not forthcoming about their biases and inabilities. This is especially true in an unfamiliar and public group setting. Jury selection cannot be fully scripted, but careful preparation in question-crafting is necessary. Listening and adapting is integral. Attorneys who think voir dire is a waste of time are akin to football coaches who throw the opponent’s game film in the trash.
It is necessary to understand that hearts and minds will not be won in the very limited time attorneys have to conduct voir dire in New Hampshire. Non-discretionary criminal voir dire is only 5 years old in New Hampshire. Judges frequently restrict attorney time limited to 10-15 minutes. Other states have well-developed case law permitting far greater questioning of all jurors under the Constitutional requirement defendants be tried by an impartial jury.