Galina Davidoff, BridgeTower Media Newswires
It feels good to stand in front of a panel of jurors, connecting with them, hearing their answers, thinking on your feet, and serving your client by conducting the all-important task of selecting your jury.
Has this ever happened to you? Probably not.
The majority of jury selections do not include panel voir dire since most parties and judges prefer the more easily controlled individual voir dire, in which jurors are called to the side bar or enter the courtroom one by one to answer attorneys' questions.
This article summarizes the personal impressions of trial attorneys who have conducted jury selections under the new rules of attorney-conducted voir dire in Massachusetts. It does not purport to be a comprehensive analysis of all that is to be learned from this experiment.
All of the lawyers' experiences were more or less satisfactory. What attorneys reported liking the most about the new method of attorney-conducted voir dire was the need to think quickly on their feet in both individual and panel voir dire. They reported that prior practice and clear jury selection strategy were most helpful under the new rules.
Most attorneys took part in individual voir dire in which they were allowed to ask follow-up questions after the judge was done. Several attorneys were also allowed to question one or more panels of jurors. All of the lawyers reported that the proceedings were efficient and provided valuable additional information. They were able to learn a little more about prospective jurors, establish a personal connection with them, and fine-tune their peremptory strikes.
Individual voir dire is usually conducted after the judge asks all of the main questions submitted by each party, and jurors who have something to say in response to any of the questions approach the sidebar. At the sidebar, attorneys for each party surround the jurors and are allowed to ask follow-up questions.
A slightly different and less common approach is to have the panel leave the courtroom and then have prospective jurors enter one by one to be questioned first by the judge and then by the attorneys. Jurors are more comfortable with this approach, which allows for better attorney-juror interactions. Under these conditions, those who participated in different voir dire procedures thought that jurors were more willing to open up and to speak their minds.
While everybody liked the procedures in individual voir dire, panel voir dire appears to be much more controversial. Those who had previously undergone special training and/or practiced panel voir dire in other states found the experience to be helpful and enjoyable. In their opinion, panel voir dire helps elicit more responses and obtain more valuable information than individual voir dire because prospective jurors feel empowered sitting together and hearing other people's answers.
Trial attorneys who had little or no prior practice found panel voir dire to be rather challenging and dangerous. On the one hand, getting the conversation started is not easy, and on the other hand, attorneys fear that prospective jurors will say negative things about their case or client and thus "pollute" the panel.
Experienced attorneys do not share the same concerns because they use the panel voir dire to encourage jurors to share their negative feelings so that they do not manifest later in the jury room and so that they can be used as bases for strikes.
While both defense and plaintiffs' attorneys were equally likely to have tried cases in other states that allow panel voir dire, they were not equally likely to have sought training. Both plaintiffs' and defense attorneys said that the plaintiffs' bar is much more proactive in providing jury selection training.
Neither government nor criminal defense attorneys spoke of receiving any particular training. The panel voir dire appears to be even less common in criminal cases. Those who represent the government often do not want panel voir dire because so many jurors express concerns about the justice system during individual questioning.
Potential jurors are more likely to admit bias against law enforcement and the justice system than biases against defendants. As such, prosecutors are concerned that so many skeptical and admittedly biased voices would affect the rest of the panel. It is, perhaps, an indication that a skilled defense attorney can benefit from requesting a panel voir dire.
All of the attorneys interviewed for this piece complimented how the judges handled the new procedure. While some attorneys wished that they had been allowed to ask more questions, everyone felt that there was time for their most important questions and issues.
None of the judges demanded that jurors explicitly admit to a bias to be stricken from the case, but all were willing to interpret jurors' answers. Judges also did not like when attorneys tried to use their jury selection time for persuading rather than questioning the prospective jurors.
The following is advice from those who conducted panel voir dire successfully:
a) Ask for panel voir dire in your next case (unless the issues are too sensitive).
b) Act more like a teacher than a trial attorney; call on jurors individually, and if no one in the panel volunteers an answer, encourage those who hesitate to speak.
c) Ask open-ended questions that invite jurors to tell you their experiences and opinions and then prompt others on the panel to speak by asking if they can relate or comment on their peers' answers.
d) Show appreciation for all of their answers.
e) Submit a lot of questions to the judge.
This last point is important since judges tend to be very thorough when asking questions, sometimes leaving attorneys with little to ask.
A few attorneys were able to take advantage of additional tools, such as supplemental juror questionnaires. Together with panel voir dire, this gave lawyers an opportunity to identify all the jurors who were unfavorable to their side.
Attorneys felt that the result was fair because the judges kept tight control and their opponents took the same opportunity to question and strike unfavorable jurors. It is easy to see, however, how a party not prepared to use all the new tools of voir dire might be at a great disadvantage and essentially lose the case before the trial even starts.
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Boston-based Galina Davidoff is director of jury consulting for Magna Legal Services.
Published: Mon, Jan 23, 2017
