Table of Contents

INTRODUCTION

THE DILEMMA: Education/Persuasion vs. Information Gathering

A.	The Traditional View of Voir Dire as an Opportunity to Educate and Persuade the Jury about the case is founded in large measure upon early jury studies, particularly that of Kalven and Zeisel. Kalven, H., Jr., and Zeisel, H. (1966). The American Jury. Boston: Little, Brown
B.	Wu and Shaffer: Get to Know the Jurors
C.	Synthesis: Educate and Learn

BEFORE VOIR DIRE

A.	Mock Trials, Focus Groups, and use of Jury Consultants
B.	Preparation of Demonstrative Exhibits for Use During Voir Dire
C.	Use of Supplemental Juror Questionnaires
D.	Knowledge of the Courtroom, Judge, Bailiff and Court Reporter
E.	Seating Charts, Note Taking, and Memorizing Jurors' Names
F.	Prepare Jury Checklists and Outlines
G.	Observe the Jury

CONDUCTING THE VOIR DIRE

A.	Examine the Jury Panel List and/or Jury Questionnaires
B.	Use a Checklist
C.	Use Juror Profiles
D.	Inquire About Friends and Family Members
E.	Ask Some Open Ended Questions
F.	Summarize the Case
G.	Identify Strengths and Weaknesses
H.	"Don'ts"
	1.	DON'T USE INAPPROPRIATE NON-VERBAL COMMUNICATION
	2.	DON'T USE MEANINGLESS QUESTIONS
	3.	DON'T OBJECT UNLESS ABSOLUTELY NECESSARY
	4.	DON'T GET RATTLED BY THE OTHER SIDE'S OBJECTIONS
I.	Goals for Voir Dire Examination
	1.	LEARN THE PREJUDICES OR PAST EXPERIENCES THAT WILL CAUSE A JUROR TO VOTE AGAINST YOU
	2.	DISCOVER THE PANEL MEMBERS THAT ARE AT LEAST RECEPTIVE TO YOUR SIDE OF THE CASE
	3.	SHOW THE JURY THAT YOU, AS AN ATTORNEY, ARE WORTHY OF RESPECT AND CONFIDENCE
	4.	BEGIN TO SHOW THAT YOU HAVE A GOOD LAWSUIT AND THAT YOUR CLIENT IS DESERVING OF THE JURY'S HELP (EITHER IN THE FORM OF A MONETARY AWARD OR, IF YOU REPRESENT THE DEFENDANT, IN THE FORM OF RELIEF FROM THE FRIVOLOUS CLAIMS OF THE PLAINTIFF)

LEGAL ISSUES IN VOIR DIRE

A.	Recording Voir Dire Examination
B.	Jury Reshuffle
	1.	TIME FOR OBJECTION
	2.	THE SPECIFIC OBJECTION
	3.	THE RULING
	4.	SHOWING OF PREJUDICE
C.	Limitation on the Right to Ask Specific Questions on Voir Dire
	1.	TIME FOR OBJECTION
	2.	THE SPECIFIC OBJECTION
	3.	THE RULING
	4.	SHOWING OF PREJUDICE
D.	Time Limits on Voir Dire Examination
	1.	TIME FOR OBJECTION
	2.	THE SPECIFIC OBJECTION
	3.	THE RULING
	4.	DEMONSTRATING PREJUDICE
E.	Challenge for Cause Denied
	1.	TIME FOR OBJECTION
	2.	THE SPECIFIC OBJECTION
	3.	THE RULING
	4.	SHOWING OF PREJUDICE
	5.	SUBSEQUENT WAIVER
F.	Challenge for Cause Sustained
	1.	TIME FOR OBJECTION
	2.	THE SPECIFIC OBJECTION
	3.	THE RULING
	4.	SHOWING OF PREJUDICE
G.	The Batson Challenge
	1.	TIME FOR OBJECTION
	2.	THE OBJECTION
	3.	THE RULING
	4.	SHOWING OF PREJUDICE
	5.	IS BATSON THE DEATH OF THE PEREMPTORY CHALLENGE?
H.	Juror Concealing Information on Voir Dire
	1.	TIME FOR OBJECTION
	2.	THE SPECIFIC OBJECTION a. Specific Questions on Voir Dire b. Objection and/or Motion for Mistrial/New Trial
	3.	THE RULING a. Showing of Prejudice b. Subsequent Waiver

CONCLUSION

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INTRODUCTION

An attorney preparing to select a jury faces a dilemma with respect to what he or she is trying to accomplish during voir dire. Conventional wisdom and the instincts of an advocate, supported by jury research, would suggest that the primary purpose of voir dire is to educate the jurors about the issues in the case and about your position on those issues. This view of voir dire would suggest that the primary purpose of the attorney on voir dire is education and persuasion of the potential jurors, and the primary focus of voir dire under this view is on the attorney's communication of his ideas, themes and position to the jury.

Others, however, take an entirely different view of voir dire. Professional jury consultants and many trial practitioners, also supported by more recent jury research, would suggest that the primary focus in voir dire should be upon learning about the past experiences, prejudices and biases of the potential jurors, since those are the influences that are likely to predispose a jury toward one result or another. Under this view of voir dire, the primary emphasis is not on the attorney's communication with the jury but on the juror's communication with the attorney, and voir dire should be structured to further that purpose by the use of devices such as open-ended questions which require the jury to give answers beyond simple "yes" or "no" responses.

It is the author's belief that both sides of the dilemma have some truth in their position and that an effective voir dire must accomplish both tasks: it must educate the jury as to the facts and themes which you want to establish in the case but it must also identify juror experiences or prejudices which could influence their verdict. In the author's opinion, greater emphasis should nevertheless be placed on getting to know the jurors. Facts and themes which are outlined in voir dire can be more fully developed in opening statement and final argument, but voir dire is the attorney's only opportunity to interrogate and discover information about the potential jurors. While some emphasis must be placed upon educating and persuading the jury about your case, an effective voir dire must capitalize on that one opportunity to find out information from the jury panel.

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