Best Secrets Of Voir Dire (Or Why You Didn't Get Picked As A Juror)

How do you know which people are right for your case?

jury trial jury duty trials technology screensJury selection is set to begin this week in the Bill Cosby trial, so what better time to discuss the ins and outs of voir dire? Some states don’t let attorneys do much of anything when picking a jury.  Other states, though, open the floor to them, and there’s no better way to figure out who’ll vote for an acquittal than by doing a solid voir dire.

Even if the evidence against your client is overwhelming, you can still win if you pick the right jury. The reverse is also true.  Pick a majority of people looking to convict and no matter what the facts, they will.  That’s how important selecting a jury is.

So how do you know which people are right for your case?  Here’s a few things I learned in the course of being lead counsel in 100+ trials.

1) Stereotypes don’t always work.

If you’re a defense attorney defending a client charged with a low-level violent crime, the knee-jerk reaction is to kick off the juror who’s a banker but keep the social worker or nurse, kick off anyone who watches FOX, but keep the people who loved “Serial,” and always reject anyone affiliated with law enforcement.  If you’re on the prosecution side, conventional wisdom has it that you should get rid of anyone with a connection to the criminal defense world even if somebody’s distant cousin worked as a public defender.  And never, ever keep anyone with a non-traditional job like freelance artist, photographer, or astrologer.  (We get these in NYC.)

While some of these stereotypes hold true, they don’t always.  I once had a narcotics case where a working undercover was in the venire.  She was a heavy-set, dark-skinned black woman with dreds and a nose ring. She was judging whether police nabbed the right guy in an observation sale.

When I spoke to her, her answers were so solid, reasonable, and open-minded that I sat her.  We won the case.  On another case, I was ready to seat a federal prosecutor on a low-quantity drug case, but the Assistant District Attorney kicked him off.  The State prosecutor knew his evidence wouldn’t be anywhere close to what would have been presented in federal court.

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2) Balance the jury.

Let’s say you’ve got a case where race is factor. (Say your client is black and all the cops are white.)  In one such case, I sat a successful black businessman as the foreperson.  I figured having even one person of color on the panel was better than none.  I was wrong. The jury convicted fast.  I think the foreperson resented my client and probably never presumed him innocent in the first place.  I intuited that he thought, “If I could make it in non-criminal society, so could have this guy.”  His presence, especially as the foreperson, assuaged the guilt of all the other white jurors who may not have so readily convicted.  Lesson: if you seat a person of color who matches the race of your client, unless you’re positive he’s in your corner and that his personality is strong enough to stick to his position, you’ll need more than one to balance the mix. Otherwise beware of the “Clarence Thomas effect.”

3) Being didactic doesn’t tell you much about the jury.

When I was trained as a public defender with the Legal Aid Society, we were taught that we should use voir dire to educate the jury about our legal theories and the scientific positions that would later be explored.

For example, “You agree with me that the mind doesn’t work like a camera, right?”  “You understand that people can be sure of something, but be making a mistake.”

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This type of questioning has its part, but because it’s not open ended, it often doesn’t tell you much about the potential jurors. When the judge asks them close-ended questions like, “You all promise you can be fair and impartial?”, they sit there dumbly, eyes glazed, nodding their heads.  Close-ended questions by lawyers during voir dire have the same effect.  They often provoke perplexed looks, annoyance, and boredom.  You’ll have plenty of time to argue your legal theories in summation.

4) Let the people talk.

If you think of voir dire more like a talk show where the jurors are your “special guests” who you’re trying to get to know as opposed to students at a lecture hall, you’ll learn more about whether you want to seat them.

Don’t talk at them, talk with them.

Instead of presuming the guy who’s a hedge-fund manager would be bad for your case, try to bring out some of his personality.  What made you interested in that line of work? How long have you been doing it?  Is it something you wanted to do since you were in college?  What are your best moments on the job?

Get each juror talking, then play off their answers and let any theme-specific question come up organically through those answers.

5)  What’s their vibe?

Sound new agey?  It’s not. Whenever anyone responds to you directly, you get the opportunity to hear his voice and watch his body language.  Is he looking directly at you or down?  Are his arms folded across his chest?  Does he seem annoyed or interested?  No matter what the person’s job or neighborhood — if the prospective juror is pleasantly responsive, interested, and seems just plain “nice,” you might want to think of keeping that person.  “Nice” goes a long way for the defendant.  It’s not to say that “nice” jurors won’t convict, but at least they’ll give your client a fair shot.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached by email at tonimessinalw@gmail.com or tonimessinalaw.com, and you can also follow her on Twitter: @tonitamess.