March 23, 2017

Jeffrey T. Frederick, Ph.D.

     In the first two tips in our series, I focused on encouraging attorneys to treat voir dire as a conversation with jurors (Tip 1) and to use techniques that help jurors become comfortable with speaking at the beginning of voir dire (Tip 2).  But much, if not most, of voir dire questioning relies on having jurors raise their hands in response to your questions.  Such hand-raising may be an end in itself or, as in many cases, is the gateway for follow-up individual questioning.  Whether it is questioning in smaller groups (e.g., 12-14 potential jurors or less) or much larger groups (20-30 or even 100 potential jurors), encouraging jurors to participate by raising their hands is of primary importance. While attorneys rely on jurors to raise their hands, jurors are often reluctant to do so.  Using techniques to encourage jurors to raise their hands at the beginning of voir dire (e.g., initial hand-raising) will help jurors feel more comfortable, fostering initial participation and setting the stage for greater participation as voir dire continues.  (Click here to see a short video for this tip.)

Initial Hand-Raising

     Just as we considered “breaking the ice” with jurors at the start of voir dire by asking all jurors to participate using the initial background summary technique (five initial questions) in Tip 2, we need to break the initial reluctance of jurors to raise their hands as well. There are two basic approaches to accomplishing this task. The goal of both approaches is to have everyone raise their hands, but each relies on different mechanisms to achieve this goal.  The first approach relies on peer support, while the second approach capitalizes on the qualifications that all jurors share in being in the jury venire.

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August 2, 2016

Jeffrey T. Frederick, Ph.D.

    Voir dire can be an intimidating situation for the attorney—but just think what it is like for the potential jurors. Answering questions, often of a personal nature, in open court, in front of their fellow jurors, the judge, attorneys, and even the media can make anyone nervous and reluctant to talk. But talk they must if we are to have a useful voir dire.  Sure, you can ask potential jurors questions and hope that you get everyone to talk.  And, of course, you have seen Tip 1 and are ready to have a conversation with the jurors once they talk. But it is hard to have everyone talk at the beginning . . . or is it?  (Click here to see a short video for this tip.)

Initial Background Summary

     When faced with the intimidating nature of the voir dire questioning process, what can we do to encourage jurors to participate (both through talking and raising hands)? One approach is to help “break the ice” with jurors by having everyone talk at the outset of voir dire. Our goal is to reduce the jurors’ initial discomfort in speaking in this public setting by giving them practice in speaking in this setting. I refer to this approach as the Initial Background Summary. The key to this approach is to

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June 13, 2016

Jeffrey T. Frederick, Ph.D.

     I usually address my posts to attorneys with suggestions concerning jury issues.  But today, I want to address trial judges (and attorneys) in light of the recent decision in Foster v. Chatman, 136 S. Ct. 290 (2016), concerning the discriminatory use of peremptory challenges.

Foster v. Chatman: Poster Child for Discriminatory Purpose

     First, some basic facts. Timothy Foster, a black man, was convicted of capital murder in Georgia in 1987, months after the landmark Batson v. Kentucky, 476 U.S. 79 (1986), decision banning discriminatory use of peremptory challenges based on race.  While five blacks were qualified during voir dire, none made it on the jury.  One black potential juror, Shirley Powell, was removed for cause the day peremptories were to be exercised (she came in to court and notified the court that she had a close friend who was related to Foster). The prosecutor used four of its challenges to remove the remaining black jurors. The defense raised a Batson challenge setting in motion the three-step Batson procedure: (a) the defense presents a prima facie case that a peremptory challenge had been exercised based on race; (b) the prosecution must provide “race neutral” explanations for its disputed exercise of peremptory challenges; and (c) the judge decides whether the defendant has shown purposeful discrimination.  It was this last step that was at issue in this case. 

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Jeffrey T. Frederick, Ph.D.

Researching Potential Jurors During Voir Dire

     In many, if not most, jurisdictions, the list of potential jurors is made available to the parties at some point before the day jury selection begins. As a trial consultant, I am often called upon to conduct research on potential jurors before trial. This research consists of general Internet searches and utilizing sources like social media (e.g., Facebook, LinkedIn, Twitter, and Instagram), news media, publicly available databases (e.g., political contributions, parties in civil lawsuits, housing values, and other public records, etc.), and any custom databases developed specifically for the litigation. Discussions of these activities can be found in chapter 8, “Jurors and the Internet,” of my book Mastering Voir Dire and Jury Selection.

     However, what happens when you don’t get the jury list until the day of trial? Do you give up using information outside of what you can gather through voir dire? Obviously, the information uncovered during voir dire questioning is of primary importance. But outside information can be extremely valuable also. To further complicate the picture, let’s add an information collection target of two hours from the start of voir dire for a venire of 31 potential jurors. Well, a colleague and I recently faced this situation. What we did may get you thinking creatively also.

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