My Voir Dire Fetish

 Posted on May 20,2007 in Uncategorized

Anne Reed has posted a list of my recent posts on jury selection. Five posts on jury selection in four days is almost embarrassing (especially since I posted nine other times in those four days - is that writing or typing?).

I really love jury selection, though; it's my second-favorite part of a trial. (My favorite part of a trial is taking a two-word verdict, (a) about which there's not much to say; and (b) which, sadly, doesn't happen in every trial. My third-favorite part of trial is cross-examination; dead last is the time between the end of the my closing argument and the reading of the verdict).

Trials are won and lost in jury selection. The best voir dire won't overcome the worst set of facts... but neither will anything else. Voir dire sets the tone for the trial and gives one side or the other the edge; that edge is the jury's view of the theme of the case. Is the case about "getting drugs off the street" or "making the government follow the law?" "Protecting children" or "preventing false convictions?" "Sending a message" or "being fair?" The jury is going to come out of jury selection with either the government's or the defendant's theory in mind.

The great news for the defense is that, in jury selection, we get to talk to the jury last. We have a chance to change the story. We can begin the presentation of evidence with our theory reverberating in the jury. Clearly we have recency on our side.

What may be less clear is that we can seize primacy as well. We do so when we perform voir dire so that it is entirely different than the state's. If voir dire is a television show, and we produce the last half, then we get the last word but the prosecutor got the first. If, on the other hand, voir dire is two separate shows (say the prosecutrix's show is "Law and Order" and ours is "Boston Legal") then we can amaze the panel so that the prosecutrix's show is irrelevant. We get to write our own opening titles ("In the criminal justice system, the people are represented by two separate but equally important groups: the trial lawyers who defend them before juries, and the appellate lawyers who represent them on appeal. These are their stories. Dun-dun!") as well as the punchline.

If you're watching TV and a new show comes on, you know it immediately. In the first 30 seconds of watching you can tell the difference between "Boston Legal" and "Law and Order." Plan the first 30 seconds of your voir dire so that the panel knows that the prosecutor's show is over and yours has begun.