Asking the Right Questions During Voir Dire

By Jocelyn Cinquino
Special to the Legal

The potential value of information gathered throughout the process of voir dire is indisputable. Getting a chance to learn about the jurors’ lives, their families, their past experiences and what they think about major case issues is without question one of the most important things you can do. There comes a point in time, however, when too much of a good thing becomes a problem. When your well-intentioned juror questionnaire has spiraled into more than 100 items or when your proposed voir dire is 10 pages long, you know you have crossed the line from that information being helpful to it becoming a hindrance. The ultimate value of what you learn through voir dire is infinitely tied to how you end up using it. If your information is only as good as what you get out of it, making your voir dire and questionnaires manageable from the start helps you in the end.

As your thoughts for areas to pursue in voir dire start to take shape, you should allow yourself to brainstorm and create a wish list of questions without limits. Getting all of those ideas and thoughts down on paper can help with the necessary next step, which is stepping back. Casting a critical eye on the unedited list lets you see where your stream of consciousness is leading you. Are you picking up on certain categories of questions, ones that you may be repeating or asking in alternative ways or those for which you struggle to find the best language? This tells you a lot about what is really important to ask about and what may be nice to know but isn’t going to get you anywhere. For example, you may like to know how they get their news, but in a case where media isn’t an issue, what are you going to do with that information at the end of the day? Any insight their answer could offer on possible political or lifestyle orientation would come out in other ways if it were an important enough part of the jurors’ lives.

Separating out the questions you can and cannot live without gives you direction and brings your focus to the issues that ultimately matter the most. As you go through this process, it’s typical to see that the questions that make the cut are those that are specific to your case and not so much those stock questions we grow attached to and ask almost as a reflex. If you are covering the three most important areas, namely, (1) how a juror has lived life, (2) how they spend their time and (3) what they think about major issues in your case, you can make voir dire manageable and avoid the pitfalls of focusing on things like demographics in favor of more helpful attitudinal and experiential information.

You do yourself a favor on the logistical end of things, too, when you keep your voir dire and questionnaires lean and focused. For example, if you know 200 jurors will be completing a questionnaire before voir dire and you have just a few days to review and rank them for potential strikes and follow-up questions, make sure you have a plan in place for what you are going to do with all that information when it starts rolling in. Strategize beforehand what questions you will be on high alert to review, who on your team is going to do what when and how you will actually use the information once you have it all reviewed. Sometimes even basic things like how long it takes to scan all those pages, how much time it takes to ask a long list of voir dire questions in court or how to physically view your juror questionnaire ranking file at counsel table become issues that need attention.

Considering the perspective of the judge and jurors on this issue also makes clear how important it is to make sure our eyes don’t become too big for our stomachs when it comes to voir dire information. Being sensitive to a judge’s generally streamlined approach to voir dire by proposing a thoughtful, meaningful list of edited questions increases chances they accept your list. Even if the judge doesn’t allow everything you would like, he or she will get a clearer sense of your position and perspective on the case from the questions you are proposing be addressed. And jurors, notoriously unforgiving of any perceived waste of their time or repetition, will appreciate a tight, concise voir dire and they will remember you for it.

Being realistic and strategic about the questions you ask in the process of jury selection, whether it be in open court or through a questionnaire, makes the cognitive task of asking follow-up questions and exercising strikes easier to handle and ultimately more instructive. Putting quality of over quantity keeps you focused on the handful of key questions that actually tell you more about the juror than 10 other questions combined ever could.

Jocelyn Cinquino is a jury consultant with MMG Jury Consulting. She holds a J.D. from Suffolk University Law School and a M.A. in forensic psychology from John Jay College of Criminal Justice. For over 15 years, her expertise in forensic psychology and law has been applied to civil and criminal cases throughout the country. Her work includes a specialization in complex jury research design and analysis, case development and advanced trial preparation including witness communication training, voir dire consultation and jury selection strategy. Contact her at [email protected] or 917-733-0770.

Comments

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