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Voir dire The stated purpose of the voir dire segment of jury selection is to provide an opportunity for the court to ferret out potentially biased jurors in order to create the foundation for a fair and impartial trial. In actual working, the adversary system impels attorneys to choose jurors who are most biased and sympathetic to their side of the case, and the court hopes that through this process the panel results in a balanced group favoring neither side more than the other. The effective attorney uses the voir dire not only to identify favorable and unfavorable jurors, but also to develop the moral foundation for that case. From pre-trial research to voir dire. Pre-trial research is invaluable to confirm or determine a potent case theory and assess the verdict-relevant bias-laden issues for the case. Since verdict ultimately boils down to the opinions of jurors, the responsible and savvy attorney will conduct research to find out what potential jurors think. The attorney should do everything possible not to gamble with the client's hopes or his own time and energies. Before settlement negotiations or trial, every case should be pre-tested to some extent. Since law schools emphasize the law and not social sciences, a trial consultant with behavioral science research skills and psychological understanding can complement the litigation attorney's insights through pre-trial research that clearly establishes the verdict-relevant bias-laden issues of the case. The consultant can then interpret the psychological attitude-belief profiles associated with favorable and unfavorable jurors and construct a voir dire strategy that targets specific questions useful for identification of these jurors. By having an already tested case theory and knowing which issues are most verdict-relevant and morally complex, the attorney can confidently explore juror views in a succinct and effective manner. A common but dangerous practice is for attorneys to base their peremptory strikes on guesses regarding verdict-relevant issues and juror biases from unreliable preconceptions and stereotypes. Attorney preconceptions and assumptions regarding issues and associated juror value systems are often reflections of unwarranted hopes that this case will be similar to some previous one and that the past will certainly repeat itself. Juror attitudes are typically case specific since each case has unique characteristics. In addition, juror attitudes change with the times and define the evolving changes in the law. For example, being the victim of prior abuse has been used successfully as part of a defense in many recent cases, but will it be as effective next month as the public at large responds negatively to the outcomes? As a result, voir dire based on guesswork can be risky, especially when one considers that the opinion of just one juror in a criminal case or three jurors in most civil cases can make the difference in who prevails. To avoid counterintuitive surprises it is necessary to check out assumptions by careful scrutiny of each juror's individual views during the voir dire. An effective voir dire is like a town meeting Jurors want to discuss the issues of a case because they want to experience themselves as part of the process of justice. Just as every person wants to feel as though his or her opinion matters, each juror wants to feel heard and understood, not interrogated or criticized. The effective voir dire can be like a "town meeting." The town meeting in old New England was the meeting of the eligible voters to discuss and act upon town business. It functioned as a discussion group, a civics class, a consciousness raising forum, and an invitation for viewpoints to come forth and be heard. Similarly, the voir dire should permit potential jurors to freely discuss their beliefs, attitudes, values, and views regarding the moral questions of the case in a non-threatening manner. The town meeting format allows the attorney to assess and evaluate jurors' views for effective selection and deselection of a jury, and it is a perfect match for the Arizona struck system. Asking the right questions. The voir dire town meeting requires facilitation skills and psychologically keen ears to make use of what the potential jurors say. It is the attorney's job to draw out the experiences, thoughts, and feelings of the jurors, without judging the biases revealed. As jurors expose their opinions in a non-defensive manner, the attorney can integrate their views and mentally begin the selection and deselection process. In addition, the attorney may take the opportunity to indirectly raise the consciousness of jurors regarding the moral foundation for his or her side of the case. One effective voir dire strategy progresses from 1) group discussion to 2) division into subgroups to 3) individual expression of experiences to 4) the development of moral guidelines. The best result is when the potential jurors deliberate the case during the voir dire. For example, let's say that pre-trial research indicated that the pivotal verdict-relevant issue for a medical malpractice case involves juror expectations that the patient must communicate signs and symptoms of health problems to the doctor, but the doctor must attend to the patient and be responsive to the patient's complaints. Additionally, let's suppose the attorney wants to educate jurors about this aspect of the plaintiff's moral perspective without arguing the case. (Of course, the attorney will ask questions about many other case specific issues, as well as boilerplate questions about lawsuits and amount of awards, etc., but a full discussion of all issues would be beyond the scope of this article.)
Attorney: I'd like you to have a discussion with me about some areas related to this case. Your opinions are very important to me since they will help me get to know you and what you stand for and believe in. To start, let's discuss the following issue-- How well do you think doctors listen to their patients' complaints? "That depends on the doctor. Public clinics and private practices are different." Psychologically, jurors often divide on verdict based on cognitive versus emotional personality styles. This juror offers a cognitive rather than emotional response and suggests that context will determine her rules for expectation of doctor behavior. There is not enough information yet to determine her bias as favoring plaintiff or defense, although pre-trial research indicated that plaintiff -oriented verdicts seemed to go along with an emotional personality style."I bring something to my doctor to encourage him to listen. Sometimes I bake cookies." This juror deals on a more emotional level and alludes to a personal experience. She does not expect doctors to pay attention to her without a kind of bribe. This kind of emotion is favorable to the plaintiff in this case. "I had a problem with a male doctor who treated me badly. I think some male doctors don't understand a woman's needs." Providing an emotional response and a personal experience, this juror does not trust male doctors to treat women well. Once the attorney determines a favorable juror, he should ask others in the group for their opinions, while trying to 'shield' his case-favorable juror from the other side whenever possible. If this juror says too much she will surely be struck by opposing counsel. 2) Subgroup Identification. Using a show of hands, the attorney can establish which jurors are favorable and unfavorable on this issue, by dividing them into subgroups. An attorney's assistant should be trained to take notes about the panel's responses. If necessary the attorney can then further assess how strongly each individual feels about that particular issue, by asking for scaled responses. Attorney: Who agrees? (Raising of some hands.) "Yes. Women have to speak up or some male doctors will minimize their problems."
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Copyright 2004 ~ Alan J. Cohen Ph.D |