Juror-Centered Voir Dire

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No matter who does the voir dire, whether Court or Counsel, the jury wants- and deserves- to be treated with consideration.  One way to think about how to proceed with them is to “Cover the C’s”. This means to address certain issues in the order that they will really matter to the jurors. These areas of interest seem to all begin with the letter “C”. They are Capability, Cost, Convenience, Case issues, and Concerns. To be most respectful of the venire, they probably should be dealt with in the order listed, Why? Because it is a way to attend to basic human concerns first, then ask about matters substantive to the case at hand. Judges and attorneys who work from these priorities will earn the appreciation and respect of the jurors.

Capability: The prospective jurors who are most worried and thus most deserving of our early attention are those who are worried that they are not physically capable of serving, usually because of a health concern such as diabetes, incontinence, asthma, a bad back, etc.  Also connected here are issues such as literacy and vision or hearing disorders. These issues should be discussed first because the affected individuals may be too distracted by their anxiety to attend to questions in other areas. My experience is that judges and attorneys who signal a willingness to understand and try to meet the needs of such prospective jurors are rewarded in many ways, not all of them obvious.

The best juror-centered voir dire question probably shouldn’t be about “hardship”. It should be about capability. “Who thinks they simply may not be capable of serving because of a physical limitation or health condition?”

Cost: The next concern is that of money worries, whether the loss of income or the incurrence of expense connected to jury service. Some jurors in service professions truly fear that they might lose their jobs; others face potentially damaging loss of salary. Transportation and child care costs for prospective jurors should not be underestimated as very real sources of great unanticipated expense and- thus- of concern to lower income workers. Maybe the Courts in certain venues can offer little relief in this area. Maybe a Court fears a stampede of jurors attempting to use income loss as an excuse.  An appropriate introduction of the issue will reduce this risk. Those preparing to make illegitimate claims for exemption should be warned that, if they do, there may be a severe consequence.. This warning does not have to be heavy-handed or threatening. Further, my experience is that it is not hard to discriminate the legitimate from illegitimate requests for release from service on this basis. Jurors who make transparently illegitimate requests teach us much about themselves that is useful, of course. In covering this topic in a way that is respectful and considerate, much is gained.

The juror-centered inquiry here is about expense. “Who finds themselves really worried about some monetary expense they will incur if they serve on this jury?”

Convenience: Some jurors will have convenience issues that serve as legitimate sources of concern. These include the securing of support of friends and family in child-care, taking care of elderly parents, etc. These issues should be explored, both for the obvious purpose and for another- highly useful- purpose as well. The way jurors approach the discussion of these issues teaches judge and counsel alike about the jurors’ character and intelligence and communicating style. Thus, in what can be a thirty-second conversation about “who will pick up your kids after school”, much of what lawyers need to know about a juror is taught without the filtering and hesitation that often distorts more case-specific discussion. Listen, offer support and encouragement, even ask other prospective jurors for ideas about how a child care problem might be solved. It doesn’t’ take long and it’s the right thing to do. In every venire, at least one legitimate hardship is usually surfaced and everyone in the courtroom knows what should happen next. All will appreciate even-handedness and compassion on such matters.

The juror-centered inquiry with regard to convenience asks about difficulties arising from responsibilities for the care or safety of others. “Is there anyone here who has concerns that their service will create serious problems for someone they need to take care of, whether an invalid, child, or someone else?” Much of the time, this can be a chance for court or counsel to assist with a little problem solving, and if successful, transform a worried person into a committed juror.

Case Issues: Finally, having made sure the venire is composed of people who can actually serve, we turn to the issues related to the specifics of the case. My general recommendation is to NOT ask jurors to inquire of themselves as to their attitudes about the case, the parties; the specific issues.  Most of us are not very introspective, and have little skill at describing our attitudes and biases to others. We don’t even usually know that we have them; we just think and feel and believe and act. An effective juror centered approach is one that reduces the pressure to introspect aloud and in public, at least at first. My suggestion is to get jurors to talk about the views and experiences of others whom they know.  Questions of this ilk: “Who knows someone who has made an insurance claim and got mistreated?” are best. They allow jurors to talk about commonly held attitudes and perceptions. In this exchange, the beliefs of individual jurors who comment will be transparent, since most will be less guarded than if asked directly about their own views. An attorney who correctly believes a challenge for cause could be warranted will have less trouble getting a juror to acknowledge a serious bias if the conversation is already started.  Such a bias will also be more obvious to the Bench, if it actually exists. Thus an appropriate challenge gets correctly made, correctly granted.

Concerns: I have always thought that all voir dire should end with an open invitation for private conversations at the bench for jurors who think they even might have an issue. Sometimes it takes the full term of voir dire by all parties to stimulate a juror to an awareness of his or her own prejudice. Often jurors who ask to be excused at this point do it with great regret because the process has already proved satisfying and they are motivated to serve.  It is the very best circumstance within which a trial judge can release a person from service. The person is qualified, available, motivated, but cannot serve on this case because they may not be able to be fair on this case. They are thus sent out to serve on another case or on another