July 7, 2016
As I mentioned in the introduction to this series on Mastering Group Voir Dire, group voir dire is the most challenging format for questioning jurors and getting them to respond honestly and candidly. The first tip in our series focuses less on the jurors and more on the attorney who is conducting voir dire questioning. It is the orientation or approach that the attorney takes to the questioning process that sets the tone for voir dire. (Click here to see a short video for this tip.)
How you approach voir dire goes a long way in determining the ultimate utility of the questioning process. Will it be one where jurors are responsive, open, and candid? Will it trigger attempts by jurors to engage in what social scientists call “impression management”—where jurors try to look their best and hide their real feelings? Or will it make jurors defensive, causing them to seek to limit their responses and overall participation?
Have a “Conversation”
While the goal of voir dire should be to provide an atmosphere where jurors are encouraged to participate in an honest and candid manner, three major approaches differ in the ability to achieve this goal. The most effective orientation is to consider voir dire questioning as an opportunity to have a “conversation” with jurors. By focusing on having a conversation with jurors several things happen. First, your body language and physical orientation to the juror will change. You become more open and welcoming toward the jurors. Second, a good conversationalist is interested (and shows interest) in what the jurors are saying. This is reflected in the use of verbal and nonverbal reinforcers (e.g., using phrases like “thank you” and “I appreciate your candor” and gestures such as nods and smiles) to encourage and maintain the “conversation” and the amount of time jurors spend talking to you as compared to you talking to them. Nothing kills a conversation faster than when you do all the talking—leaving jurors bored, disinterested, and unresponsive. Finally, you will find yourself using more open-ended questions (e.g., “How do you feel about . . . ?” Tell me your thoughts on . . . ?” “Why is that?”) and relying less on closed ended, yes or no type questions. Open-ended questions foster and maintain conversations with the added benefit of the focus being on the jurors themselves in terms of their thoughts, feelings, and experiences.
A second approach to voir dire is that of a “job interview.” You are there armed with your list of questions to see if the potential jurors get the “job” of being jurors in your case. You are “judging” the jurors, and, as a result, they are likely to respond with their resume of “best” answers. Unfortunately, these answers are designed more for maintaining a good appearance or “looking good” than in revealing their true thoughts and feelings. There is always a considerable psychological distance between the job interviewer and the applicant, a distance that diminishes juror candor and honesty.
Finally, the third (and worst) orientation is that of an “interrogation.” The interrogation style of questioning communicates to jurors the impression that (a) the jurors have done something wrong and (b) it is up to the attorney find out what it is. This style of questioning is assertive, cold, distant, and less welcoming of the jurors and their answers. As a result, jurors become defensive, respond with minimal answers, and seek to avoid participation altogether—which is relatively easy to do when being questioned in a group. The psychological distance between the questioner and jurors created by the interrogation style of questioning is maximized, leading to minimal juror disclosure and participation during voir dire.
A second component of having a proper orientation is confidence. You should treat every question as being important and ask it in a confident (not arrogant) manner. For example, consider the subtle differences between asking questions in a confident, as compared to a nonconfident, manner.
“How many of you watch or listen to (conservative media talk show hosts like Rush Limbaugh or Sean Hannity/progressive media talk show hosts like Rachel Maddow or Chris Matthews)?”
“How many of you or a close friend or family member have experience with depression?”
“Ahem . . . how many of you watch or listen to . . . ah . . . (conservative media talk show hosts like Rush Limbaugh or Sean Hannity/progressive media talk show hosts like Rachel Maddow or Chris Matthews)?”
“<head down looking at the written question> How many of you or a close friend or family member have experience with . . . ah . . . depression?”
If you are uncomfortable in asking these questions (e.g., pausing in the middle of the question or burying your head in your papers and not looking at jurors while asking the question) you are asking for trouble. Jurors will pick up on your discomfort and wonder if it is appropriate for you to ask such a question, or, because of your discomfort, they may start to feel uncomfortable themselves in answering the question. The opposing counsel is likely to be alerted to this discomfort and consider objecting to the question. The judge too may be alerted to your discomfort and either sustain an objection or in some way seek to limit your voir dire. Asking questions in a confident manner goes a long way in minimizing these negative outcomes.
It doesn’t matter how many jurors are being questioned, whether it is 2, 6, 12, 20 or 40, approaching the process as one of having a “conversation” and being confident in your questioning style will dramatically improve the overall quality of your voir dire and subsequent success in jury selection.Mastering Voir Dire and Jury Selection.