It is easy to over-think jury selection, especially when one listens to the plethora of theories and techniques of people who think way too much about it, like, say, the writers of this blog.
To remedy this, here is a simple guide to how to pick your favorable jury by focusing on the most basic element: Exposing unfavorable jurors.
1. Primary Task: Expose Jurors Who Would Likely Favor the Opposing Side
Despite the one-time opportunity that jury selection affords to identify and strike jurors who appear likely to favor the opposing side, attorneys often use up a considerable amount of their limited voir dire time on other tasks, such as arguing their case, teaching aspects of their case or trying to improve already favorable jurors, while allowing biased jurors to rest comfortably in the jury box. The attorney’s primary task should be to figure out what the opposing side is offering as their version of the facts, and then to expose the jurors most likely to be intrigued by that version of the case events.
2. The Key to Exposure: Discern the Other Side’s Narrative Themes
The key to considering who might be best for the opposing side is to consider the emotionally resonant narrative themes that might be used by the other side. An attorney can get an understanding of the other side’s potential narrative themes by using his or her own reactions as a guide. The attorney can think about the many different ways that the other side might present the case. To discern the persuasive power of these narrative themes as they emerge, the attorney can ask him or herself questions to monitor these reactions. For example, putting aside my own understandably biased view of the case, what do I feel when thinking of the other side’s best arguments? What would be convincing to me?
The attorney can then consider who else might be particularly open to these themes. What would that person’s view of the world (such as, views of police, corporations, government, fairness) be like? What questions could the attorney ask during voir dire to expose these particular types of people?
3. Do Not Fear Juror Infection From Exposure
Some might raise a concern that asking exposure questions would do more harm than good, because the attorney may present and possibly elicit negative ideas from the jurors. Many attorneys are concerned that potential jurors, even if later struck, may infect otherwise good jurors with these negative ideas.
During voir dire, however, the panel members are largely strangers. At the end of a trial, the remaining jurors will be more intimately connected and will have more opportunity to speak freely with each other. It is at this later point that these biased jurors will have far more influence on their peers. It is more dangerous to your case for bad jurors to remain unexposed, to end up on the jury and then to discuss their negative views during deliberations, than it is for them to bring up these same ideas during voir dire. It is more important to try to expose biased jurors (while also trying not to expose more favorable jurors) than to try to keep jurors and attorneys from raising questions of bias up front.
4. Avoid The Temptation to Improve Favorable Jurors
A common mistake is to spend too much of the limited voir dire time attempting to make favorable jurors slightly better rather than focusing on exposing unfavorable jurors. This often stems from an attorney’s attempts to teach jurors how strong one’s own evidence will be or to spin weak points in the case, such as shaky witness testimony.
These attempts to pre-teach the case facts to favorable jurors can be seen when attorneys spend a lot of time asking questions about whether jurors can be “fair and impartial” about various topics. These types of questions provide little information that would expose an unfavorable juror, and tend to get nods of agreement. Most jurors will state that they can be fair and impartial about basic trial issues when questions are asked in this way.
5. Balance Exposure with Priming Questions
There is a significant difference, however, between teaching about case facts and teaching about case themes. An attorney may choose to use a portion of the voir dire time allotted to prime or sensitize jurors to the attorney’s favored narrative context, if the judge and opposing counsel allow it. In this type of questioning, the attorney may ask questions about analogies that fit the narrative theme that will be presented in the opening in order to prime the jury to think about the case facts in the attorney’s favored context. Even with this goal in mind, though, the majority of voir dire questions should be aimed at exposing the biased jurors.