The Sixth Amendment of our Constitution establishes a right to an impartial jury. Jury selection in American courtrooms is designed to protect that right. Practically speaking, what we call jury selection is actually a process of de-selection.
During this phase of the trial, each side seeks to eliminate from the jury panel anyone who is likely to be biased in favor of the opposing party. While bias can be overt and obvious (for example, some kind of connection to or relationship with the other party), a juror’s biases are often far from obvious. His or her life history and personal experiences may point to a tendency to favor the opposing party, even though the juror might deny (or, more likely, be unaware of) any bias. Because jurors are the ultimate decision-makers, who gets selected, and why, is a matter of great importance to both sides.
What is Voir Dire?
The term voir dire describes the process of jury selection generally, and specifically the phase during which attorneys are allowed to talk directly to the potential jurors. For example, if information that the juror has already provided to the court (for example, on a summons form or other questionnaire) suggests that the juror may already be disposed in favor of one side or the other, the attorneys will want to ask that juror additional questions that probe for the possible bias. In some courts, judges prefer to conduct voir dire themselves, bypassing attorney questions in favor of a process that is entirely judge-driven. Either way, the purpose is to identify predispositions or outright favoritism that will prevent particular jurors from judging the case fairly and impartially.
How We Select a Jury
We assist our clients before and during jury selection. The first phase involves developing voir dire questions that can help to identify potential biases. Sometimes the work also involves drafting a juror questionnaire that, with input from both parties and the judge, can further streamline the selection process. If the case has been research-tested (for example, in a mock trial), those results may highlight juror characteristics that we think are especially relevant. In turn, we consult with the trial team on questions most likely to bring those traits into the open, so to speak. Even when voir dire is administered entirely by the judge, we meet with the team to discuss the questions that will be most important. The second phase takes place in the actual courtroom, on the first day of trial. On that day the trial consultant becomes an additional set of “eyes and ears” for the attorney, observing the room as he or she (or the judge) directs questions to the panel. We then become active participants in the process of exercising jury strikes.