The Blind Leading the Blind

 Posted on May 15, 2009 in Uncategorized

One of the common questions asked on Texas criminal lawyers' listervs is, "does anyone have a voir dire for a... case they could share with me?" (I'm reliably informed that prosecutors do the same amongst themselves.)

I have a friend-we'll call him "Bill Bomble"-who had some experience in show business before becoming a prosecutor. Bill says, "voir dire is improv," and he's absolutely right: jury selection is an improvisational art. It's not susceptible to scripting.

Here are some broad rules for picking a jury (at least in a noncapital case): pick n<4 issues that you want to discuss with the jury. Figure out how to get the jurors talking about them (tip: start with getting the jurors talking at all). Once you get them talking, don't lecture the jurors. Ask them questions. Not yes–or–no questions. Open–ended.

In a competent voir dire, the lawyer does 10% of the talking and the jurors the other 90%. Unless you distribute your voir dire script to your jury panel, they're not going to follow it. They probably wouldn't follow your script even if you distributed it to them. The objective is to get meaningful information and build rapport with the jurors. The script that worked with one jury will flop with the next. In fact, if it's a script it probably didn't work with any jury.

Following a script in jury selection is not possible unless you maintain control. There are times in trial for maintaining control (cross-examination, certainly) but jury selection, when you are trying to find out what makes the jurors tick and form them into a coherent group, is not one of them.

When you ask other lawyers for a voir dire for a particular kind of case, you're announcing to those lawyers that you don't really have a clue how to pick a jury in any case. But take heart: everyone who responds to your request by providing you with "a voir dire" is just as clueless as you.