Chapter 5: Jury Selection
The primary purpose of jury selection is to identify and select jurors who can reach a fair and just verdict, and the de-selection process — using peremptory challenges and challenges for cause — is also the lawyer's first opportunity to educate the panel, build rapport, and introduce the case theory under tight time limits.
Chapter 5
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5.1 Introduction
A. Role of Attorneys
B. Client Participation
C. Role of the Judge
D. Familiarity with Procedures
5.2 Objectives of Jury Selection
A. Support Challenge for Cause
B. Exercise Peremptory Challenges
C. Educate the Jury
D. Develop Rapport with Jurors
E. Enhance Positive and Neutralize Negative Views
F. Obtain Commitments
5.3 Procedure
A. Jury Pool
B. Juror Summons
C. Juror Orientation
D. Jury Panel
E. Number of Prospective Jurors
F. Selecting Prospective Jurors
G. Preliminary Panel Information
H. Oath or Affirmation
I. Preliminary Remarks
5.4 Questioning the Panel
A. Procedures
B. Questioning Exclusively by the Judge
C. Questioning by Judge and Attorneys
D. Introductory Remarks by Counsel
5.5 Jury Selection Questions
A. Types of Questions
B. Selecting Questions
C. Concluding Questions
5.6 Theories of Jury Selection Questioning
A. Impressionistic Evaluations
B. Generalizations and Stereotypes
C. Character and Personality Traits
D. Data and Information
E. Jury Profile
F. Social Science Research
G. Improper Theories
5.7 Questions and Approaches to Achieve Objectives
A. Obtaining Information
B. Educating Jurors
C. Developing Rapport with Jurors
D. Neutralizing Negative and Enhancing Positive Perceptions
E. Obtaining Commitments
F. Avoiding Uncommon Problems
5.8 Challenges
A. Challenges for Cause
B. Peremptory Challenges
C. Alternate Jurors
D. Removing Jurors
5.9 Misconduct and Objections
A. Inadmissible Evidence
B. Improper Questions
C. Inappropriate or Questionable Topics
D. Currying Favor
E. Juror Misconduct
F. Improper Conduct by Counsel
G. Objections
H. Unacceptable Removal Reasons
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REFLECTING ON ADVOCACY
A jury consists of twelve persons chosen to decide who has the better lawyer.
—Robert Frost
The audience is the most revered member of the theater . . . Without an audience there is no theater . . . They are our guests, our evaluators . . . They make the performance meaningful.
—Viola Spolin
Introduction
The primary purpose of jury selection is to identify and select jurors who can reach a fair and just verdict. The ultimate goal of an advocate is trying the case before a jury whose verdict decisively favors the advocate’s client. Our justice system seeks a fair trial. The trial lawyer also seeks a winning outcome.
Before the trial begins, people from the jurisdiction where the trial is to be held are summoned to serve as jurors. Court administrators and judges randomly select potential jurors from the community. These local residents appear at the courthouse to serve their jury duty.
Jury selection is the beginning stage of the jury trial. Voir dire, a descriptive term for jury selection, means to “speak the truth.” Prospective jurors provide information and answer questions asked by the judge, and in many jurisdictions, by counsel, to reveal their impartiality and fairness and their biases and prejudices. The trial lawyers choose those they prefer and de-select those they do not want, leaving a panel that decides the case.
Information may be obtained from prospective jurors in several ways. The jurors commonly complete a detailed information questionnaire or form that describes basic facts about family, jobs, experiences, and related data, which is provided to counsel. Responses to questions asked of the prospective panel provide additional helpful information. Where and when appropriate, the lawyers may search public records and the internet or social media networks to obtain other relevant information.
The jury selection process is counsel’s first opportunity to establish professional contact with prospective jurors and the only opportunity counsel may have to enter into a dialogue with them. This process, within limits, may be used to achieve other objectives, such as: educating the jurors, developing rapport with them, enhancing positive and neutralizing negative attitudes, obtaining commitments, and introducing case themes and theories. See §§ 5.2 & 5.7. During the rest of the trial, the attorneys either speak to the jurors or present evidence.
The initial jury selection process is also the time when the prospective jurors may be assessing the attorneys. The jurors will be drawn to an advocate who is respectful, sincere, credible, and trustworthy. This assessment process will likely assist the favored lawyer in having that lawyer’s case more readily accepted.
The process of selecting jurors is a means of de-selecting jurors. Attorneys use peremptory challenges and motions to strike for cause to remove a limited number of prospective jurors. Attorneys logically and legally prefer to remove jurors who appear unfavorable to their side or favorable to their opponent.
This process of de-selection is a challenging task because of the difficulty in predicting how a prospective juror may decide a case and the relatively short amount of time available for jury selection. Attorneys can only obtain a limited amount of information from jurors before and during the selection process. It would take an extensive amount of questioning and a lengthy period of time for attorneys to obtain enough information to make thoroughly informed judgments. Within the time allowable, the best an advocate can accomplish is to make a reasoned judgment based on the information available.
The jury selection process does not resemble what appears on streaming, television, or in the movies. In most cases, the opportunity to question jurors is quite limited. Only in serious criminal cases or very significant civil cases will counsel have a chance to conduct extensive or sufficient questioning. And, the cost of hiring jury consultants is often prohibitive. The use of Gen AI and LLMs can assist in obtaining jury data and developing voir dire questions. See § 1.1[C].
This Chapter explains jury selection procedures, how to prepare for and conduct jury selection, effective selection approaches, various categories of jury questions, procedures for the removal of jurors, and strategies and tactics involved in this selection process. Chapter 12 covers jury instructions, deliberations, and verdicts.
A. Role of Attorneys
The role of counsel in jury selection varies among jurisdictions. In all jurisdictions, lawyers may bring motions to strike jurors for cause and may exercise a limited number of peremptory challenges to remove potential jurors. In those federal jurisdictions where the judge asks questions of the prospective jurors, the attorney’s role is limited to submitting proposed questions to be asked by the judge and to making decisions to remove jurors from the panel. In state courts and some federal courts where the lawyers primarily question the prospective jurors, the role of the advocate becomes more substantial.
The process of asking questions of the jury panel involves several intricate skills. Attorneys can ask questions of the potential jurors and engage them in a dialogue about matters that often relate to their lives. While the questions must be planned in advance, the lawyers must make ongoing judgments regarding the scope of queries, what issues should be probed, and when to end the questioning. During this dialogue, counsel also hope to gain the trust and respect of jurors.
Jury selection is not as predictable or structured as other parts of the trial. Lawyers are commonly trained not to ask questions when they don’t know or cannot predict the answers; but, with voir dire questioning, attorneys often don’t know what to expect from prospective jurors. Counsel assess biases and prejudices jurors may have largely based on their responses. And, the lawyers must continually consider the effect questions and answers have upon individual jurors and the group dynamics of the panel.
B. Client Participation
The extent to which clients are involved in jury selection is a matter of professional and personal preference. Many trial attorneys believe their client’s input is extremely valuable, while others limit their client consultations. In deciding the degree to which a client should be involved and relied on as a resource, counsel should consider:
- The client’s understanding of the case and the jury selection objectives,
- The client’s ability to make informed decisions about the jurors,
- The client’s preferences for involvement in choosing jurors,
- The mutually agreed approaches that have been chosen for jury selection,
- The professional relationship with the client,
- The impression made on the jurors when an attorney/client “team” selection effort is demonstrated,
- The ramifications of a disagreement by counsel with a decision the client has made about a juror, and
- The lawyer’s position regarding the role of a client in the case and the corresponding ethical obligations involved.
C. Role of the Judge
The judge’s role varies among jurisdictions and the preferences of individual judges. In jurisdictions where they ask all the questions, judges may ask a limited number of questions they select, supplemented by relevant questions submitted by counsel which the judge may ask. In jurisdictions where the lawyers also ask questions, some judges may be actively involved in asking questions while others may be passive.
Active judges may limit their questioning to standard questions, allowing the lawyers to ask specific questions about the case. Passive judges may ask few questions and allow the attorneys to conduct relevant questioning the attorneys believe appropriate. Counsel can ask the judge to take a more active or passive role depending on the type of information to be sought or request permission for the lawyers to ask certain questions.
D. Familiarity with Procedures
The advocate must become completely familiar with the jury selection procedures used by the particular judge. Before trial, the attorney may learn how a judge conducts jury selection by watching the judge direct the jury process in other cases. Colleagues and court personnel are also sources of information about a judge’s jury selection preferences.
During the pretrial conference or immediately before jury selection begins, specific procedures for the jury process should be discussed thoroughly with the judge and opposing counsel. If the judge or counsel suggests that jury selection be conducted in the “usual” way, the attorney should ask what are the “usual” procedures. Novice advocates have a tendency to pretend they know how a judge directs jury selection to avoid revealing their inexperience. There is no one controlling or conventional way to conduct jury selection. Experienced trial lawyers ask the judge to explain what procedures that judge prefers to follow, suggest alternative procedures, and request permission to conduct the selection process in a way that helps their client’s case.
Objectives of Jury Selection
During jury selection, trial advocates may seek to achieve six primary goals:
- Obtain information to make challenges for cause.
- Obtain information to exercise peremptory challenges.
- Educate the jury about the case, facts, issues, clients, parties, witnesses, and law.
- Develop rapport with the jurors.
- Neutralize negative and build on positive juror attitudes and perspectives.
- Obtain commitments from the jurors.
The first two objectives are uniformly accepted. The remaining four are not described in jury selection rules but are important goals that may be achieved. The extent to which the six objectives can be attained depends upon the rules of a jurisdiction, the preferences of the judge, and the lawyer’s opportunity and ability to question jurors. Planning, practice, rehearsal, and experience will enhance counsel’s abilities to conduct effective voir dire. And LLMs can assist in composing potential questions and achieving these goals. See § 1.10(E).
A. Support Challenge for Cause
Responses by a prospective juror that reveal obvious or apparent bias or prejudice can help determine whether grounds exist to support a motion to challenge that juror for cause. Areas of such questioning include: prior knowledge of the case, familiarity with the parties or attorneys, existing attitudes regarding issues in the case, and related matters. Questions asked by the judge usually include these types of questions, examples of which appear in Section 5.7(A).
B. Exercise Peremptory Challenges
Questions and answers that reveal information about prospective jurors concerning opinions, feelings, beliefs or attitudes that may divulge biases or prejudices which will not support a challenge for cause may assist counsel in making peremptory challenge decisions. These questions include major aspects about the lives of jurors including: their family, work, hobbies, leisure time, life experiences, source of news, literature they read, programs they watch, websites they view, social media they use, and other relevant information. Examples of questions appear in Section 5.7(A).
C. Educate the Jury
Attorneys may also use jury selection to educate the jury panel about the parties, facts, witnesses, issues, and strengths and weaknesses of the case. Jury selection is the first opportunity the attorneys have to describe the case to the jurors. The first impression jurors have about a case can influence their final verdict.
Lawyers attempt to inform the potential jurors about aspects of the case through their voir dire questions. See § 5.7(B). Some jurors will be knowledgeable about the legal system and familiar with legal terms and procedures. Potential jurors may have access to public information about a case and the parties from websites and blogs, social network sources, and media reporting. Advocates can use the jury selection process to discover what potential jurors generally understand about our legal process and what they may specifically know, if anything, about a case.
Attorneys may explore and explain weaknesses or problems applicable to all cases as well as those that are specific to the case. Case weaknesses may include: the type of client (a large corporation against a sole proprietor), the remedy sought (a substantial amount of money), the sensitive nature of the case (sexual harassment or criminal sexual abuse), the kind of defense (consent or self-defense), the facts involved (drugs), the type of witness (a felon). The attitudes and feelings of the jurors regarding these issues and problems must be explored for several reasons.
These topics are important areas to probe for prejudices that may significantly affect a juror’s ability to be fair and impartial. An open discussion of these topics may reduce the chances that the jurors will use these attitudes to adversely decide the case. Affirmatively revealing problems reduces the impact of the issues and prevents the jurors from first hearing about a case weakness from the opposing party. The advocate may be able to obtain a commitment from the jurors that they will base their decision on all the evidence presented and not just on controversial facts. See § 5.2(F).
Jury selection questions can also be designed to anticipate and counter efforts by opposing counsel to educate the jury to their advantage. Questions can be asked that explore juror reactions to the other side’s positions. These questions may reveal biases favoring the opposing side that cannot be remedied, requiring removal of a potential juror. The attorney who questions jurors second may be able to change jury attitudes about the other side’s case from favorable to a neutral or negative perception.
D. Develop Rapport with Jurors
Trial attorneys want the jurors to trust, respect, and perhaps like them, and to have a favorable impression of their client. These goals can be achieved through questions and answers, which develop a professional rapport between the jurors and the attorneys. A lawyer hopes to engage in an effective conversation with prospective jurors to significantly increase the likelihood that they will perceive the advocate to be caring, sincere, honest, and trustworthy. See § 5.7(C).
E. Enhance Positive and Neutralize
Negative Views
The questioning process may be used to build on positive feelings and reactions the prospective jurors may already have toward the case and a client. Questions can also be crafted to overcome potentially negative opinions, attitudes, and beliefs about a party and issues. See § 5.7(D).
F. Obtain Commitments
An effective method of gaining support from potential jurors is to obtain their commitment regarding issues in the case. Trial attorneys may seek to have jurors promise that they will not hold unfavorable irrelevant matters against the client, that they will be impartial and put aside any biases and prejudices, or that they will follow the law as explained by the judge. These commitments may guide the jurors during deliberations. Not all courts permit questions seeking commitments. Not all lawyers accept the commitments the jurors provide. See § 5.7(E).
Procedure
Jury selection procedures are controlled by statutes, constitutional provisions, rules of procedure, local court practice, and the preferences of individual judges. This section summarizes processes generally followed in federal and state jurisdictions, and subsequent sections of this Chapter describe these procedures in more detail.
A. Jury Pool
Jurors are obtained from the community where the case is heard. The area of this community is usually the same as the venue boundaries of the court, such as the district or county boundaries where the court is located. The names of prospective jurors are obtained from public records including voter registration cards, driver licenses, utility records, property documents, phone listings, electronic and digital records, city directories, tax records, and other sources that identify possible jurors. The process used to identify potential jurors must meet constitutional standards, which require that the jury pool include individuals from all segments of the community and not exclude any class of people.
B. Juror Summons
The clerk of court or court administrator sends a summons to individuals living in the community who have been selected to serve as jurors. The summons tells the prospective jurors to appear at the courthouse on a certain day and time and usually includes an explanation of how an individual may be excused from jury duty. A statute or court rule will typically list the legitimate reasons for which a juror may be excused: for example, severe physical illness, personal or family emergencies, or disqualifying employment status (such as judges). Most jurisdictions reject common excuses (e.g., inconvenience, work) and require representative members of the community (including lawyers) to serve jury duty. Prospective jurors commonly complete a printed questionnaire and return it or complete an online informational form.
Jurors are ordinarily scheduled for jury duty for a set period, such as a few weeks. Jurors complete their jury service after this time has elapsed or after they reach a verdict in a case for which they served as a juror. Some individuals called for jury duty never serve as jurors because they are removed or because they are not needed.
C. Juror Orientation
Prospective jurors arrive at the courthouse on the scheduled day and time and may complete a questionnaire form if they have not already done so. The clerk may review this information to determine whether any of the jurors should be excused because of personal circumstances or special employment situations. Jurisdictions commonly make these information forms available to the attorneys who will be de-selecting from among the potential jurors. Administrators usually conduct an orientation program for the jury pool, which may include presentations regarding jury duty, pamphlets or websites explaining jury service, or videos describing the roles of jurors.
After orientation, the prospective jurors may stay at the courthouse and wait to be called for a case, or they may leave for home or work. If jurors stay at the courthouse, they usually wait in a room where they may read, talk, use the internet, play games, or watch selected programs. If they leave, the clerk may contact them by phone, text, or email or tell them to return on a specific day and time, or contact them in the future if they are needed. Federal courts and some state courts use interactive message or voice response (IVR) technology to inform jurors of dates, times, and changes in their jury duty.
D. Jury Panel
The court administrator selects a panel of prospective jurors for a specific case from the pool of individuals summoned for jury duty. This process may be done randomly or in the order they were initially notified. A bailiff or other court official escorts this panel to the trial room and typically seats the potential jurors in the back or side of the courtroom.
E. Number of Prospective Jurors
The minimum number of prospective jurors in a panel commonly includes the following: the number of jurors who will deliberate, plus one or more alternate jurors, plus the number of individuals equal to the peremptory challenges the attorneys may exercise, plus additional individuals to replace any juror who may be removed for cause. For example, a panel of potential jurors in a civil case may include: the 6 jurors who will make up the six-member jury; 1 or 2 alternate jurors; more alternate jurors if the trial is expected to extend beyond several days; 4 additional persons who will be struck when the two parties each exercise their two peremptory challenges; and a few additional individuals who can replace any jurors removed for cause.
In other cases, the panel will consist of more prospective jurors. If a case requires twelve jurors, additional alternative jurors will be called, and each party receives additional peremptory challenges. For example, in a criminal case, there may be 12 jurors, a minimum of 2 alternates, 8 more for possible peremptory challenges, and additional alternatives for long trials and individual replacements for those removed by cause challenges.
F. Selecting Prospective Jurors
The court clerk randomly selects prospective jurors from those in the courtroom who move to a seat in the jury box. In some jurisdictions, only those members of the panel selected to be potential jurors are seated in the jury box to be questioned, with the remainder returning to the waiting room. In other jurisdictions, the remaining members of the jury panel remain in the courtroom until they are needed. If they are not selected, they return to the jury waiting room or may leave the courthouse. If more jurors are needed, they are obtained from the pool of available jurors.
G. Preliminary Panel Information
A list of the prospective jurors may be available and provided to counsel, along with information about each of the individuals. This data may include name, address, employment status, family size, and information obtained from the form completed during orientation. If the names of the potential jurors are not provided, the attorneys or an assistant can record the names as the clerk calls their names. Most lawyers write down the phonetic pronunciation so they will be able to pronounce the names properly. If counsel receives insufficient preliminary information about the jurors, the judge or attorney should ask the panel questions to obtain additional information.
Counsel and their staff can obtain information about potential jurors through internet search engines, public records, websites, media sources, social networks, and other properly accessible community resources. Privacy laws or legal restrictions may inhibit the use of some sources. While advocates may be able to obtain further detailed information, the process can be time consuming and expensive. The importance of the case, its cost, client resources, and the time available are factors that determine the efforts to be made. Counsel need to ascertain whether they can properly and legitimately obtain additional information about prospective jurors.
H. Oath or Affirmation
The prospective jurors take an oath or affirmation, usually given by the clerk, to answer all questions truthfully and completely.
I. Preliminary Remarks
The judge ordinarily makes introductory remarks to the prospective jurors. These remarks typically include an explanation of the purpose and procedures of the jury selection process; an introduction of the parties, attorneys, and the court officials; a brief description of the case; and instructions regarding the role of jurors in the case. The content of these introductory remarks varies among jurisdictions and judges. The comments usually cover information that the potential jurors need to understand about what is happening. The judge then typically asks questions to learn information from them about their familiarity with the parties and the attorneys, any knowledge of the case, their previous jury trial experience, and other relevant matters.
Example (Judge):
Members of the Jury, this is a medical malpractice case. The plaintiff, Laura Fischer, is seated at the counsel table to your left, next to her attorney, Frank Galvin. The defendant, Wesley Brophy, is seated at the other table, next to his attorney, Ed Concannon, from the law firm of Concannon and Wheeler.
The plaintiff claims the defendant negligently diagnosed and failed to properly treat her condition when she sought medical treatment from him for her severe headaches. The defendant denies he was negligent and asserts the plaintiff did not tell him about the severity of her headaches. The plaintiff seeks to recover damages for her injuries and pain she claims to have suffered because of the alleged negligence. Defendant denies he is responsible for those damages.
Q: Are any of you familiar with, or have any of you heard about, the incident that I described to you? Please raise your hand if you have.
A: (No affirmative responses).
Q: Are any of you familiar with, or do you know, any of the parties or attorneys that I have introduced to you?
A: (No affirmative responses).
As you know, I am Judge Harold T. Stone. Two other court officials who will be assisting me with this trial are Annie Dodge Wauneka, who is the court clerk, and Macintosh Robinson, who is the court reporter.
This part of the trial is the jury selection process. We need an impartial jury that can decide this case fairly. To determine which of you can be fair and impartial, the attorneys and I will be asking you some questions. We ask these questions to obtain information about your ability to sit as a juror in this case. You must answer the questions honestly and completely. We don’t ask questions to pry into your private lives but only to seek helpful information so that the parties can select jurors you would want in a case if you were a party: a jury made up of fair and impartial individuals.
In some jurisdictions, the judge may decide not to make some or all of these comments, instead allowing the attorneys to address the jury and make the preliminary remarks. The lawyer who is to initially conduct jury selection would proceed first, followed by opposing counsel who can supplement the preliminary remarks made by the first lawyer.
Questioning the Panel
The panel of prospective jurors is questioned either by the judge and the attorneys or by the judge alone. This process varies among jurisdictions. See §§ 5.4(B) & (C). The applicable court rules provide judges with discretion in conducting jury selection. These rules may authorize the court to conduct portions or the entire examination — or to permit the parties and their attorneys to conduct the examination of prospective jurors. In most federal courts, the judge asks all the questions, and lawyers may submit potential questions to be asked. Most state courts permit the attorneys to also question the jurors along with the judge. See, e.g., Fed. R. Civ. P. 24(a) & 47(a).
A. Procedures
1. Presence of Judge and Reporter
While most judges are present during the jury selection process, a few may leave the bench while the jury is being questioned. In some jurisdictions a court reporter may not record the jury selection, and the judge may not be present to monitor the process. When there is no record of the questions being asked or when the judge is not in the courtroom, it is more difficult to control the questioning by opposing counsel. An attorney should usually request that the judge remain in the courtroom and/or that a court reporter make a record of the questions and responses.
2. Attorney Location
The lawyers may ask questions at a lectern or at counsel table, or may be permitted to approach the jury box while questioning. Some advocates prefer to sit in front of the prospective jurors. The physical layout or acoustics of the courtroom may prevent movement or require the lawyers to move to a particular location so they can be heard.
3. Order of Questioning
In many jurisdictions, defense counsel is the first attorney to ask questions, followed by the plaintiff/prosecutor — while other jurisdictions have the plaintiff/prosecutor go first. If uncertain, the advocate can ask the judge the preferred order at the pretrial conference. An attorney who plans to ask preliminary questions and then realizes that the other side asked those questions first may be left with fewer questions to ask, appear unprepared, or be unable to accomplish specific objectives.
4. Explanation of the Law
Generally, a discussion of the law by counsel is mostly prohibited as outside the scope of juror selection, since that explanation is the responsibility of the judge. Lawyers can commonly include brief applicable legal descriptions with their questions to the jury panel. See § 5.7(A)(4). Judges may permit the lawyers to present relevant law in some cases. An inappropriate discussion of the law may result in a reprimand from the judge. Counsel can always ask the judge to explain the law during jury selection as necessary.
5. Amount of Time Available
The time available to conduct jury selection is usually proportional to the issues in the case. Some judges strictly limit the amount of time the lawyers are permitted to question the jury; others permit the time preferred or requested by the lawyers. There is a common sense, reasonable duration that naturally restricts the time spent on questioning. The amount of time allowed varies regarding the seriousness of matters, the case’s complexity and length, the issues in controversy, any pretrial publicity, the abilities of counsel, the judge’s patience, and the court docket.
6. Open Courtroom
The public is permitted in the courtroom during the jury selection process, as well as during all other stages of the trial. Judges rarely restrict those who may be in the courtroom. Limits will be set only in those exceptional cases where an overriding interest requires privacy, security protection, or juror anonymity. A criminal defendant’s constitutional rights and the substantial interests of the public and media in civil cases make the presumption of openness extremely difficult to overcome. Prospective witnesses who will be sequestered during the trial may be prohibited from attending individual jury selection.
7. Jury Selection Materials
Effective advocates organize and have readily available the materials they need for jury selection. These materials include the questions to be asked, a summary of the case theories and issues, a list of witnesses and exhibits, information about the jurors gathered from jury questionnaires and other sources, the law regarding challenges for cause and peremptory challenges, and objections with grounds that can be made during jury selection.
8. Recording Information During Jury Selection
The lawyer, co-counsel, an assistant or the client usually takes notes and records information obtained during the questioning process on a laptop, tablet, jury chart, or notepad. This information may include observations of the juror’s behavior and dress, juror responses to questions, reactions towards other jurors, and other factors that may help to rate potential jurors as favorable or unfavorable. The extent of the note taking depends upon the lawyer’s approach and the desired objectives.
Note taking can also create some problems during jury selection. It may unnecessarily interfere with and delay asking questions. Some jurors may be suspicious, bothered or offended by note recording. Jurors may wonder why their responses are being taken down in such detail and what will happen with that data. Extensive record keeping can distract the lawyer from observing and listening to the prospective jurors.
Notes should be taken in an organized manner. Voluminous comments containing excessive information may be difficult to organize and apply. Any system should designate sufficient space for all relevant information, permitting the recorded information to be easily reviewed. Many lawyers develop a shorthand method that is neither distracting nor offensive. Other attorneys do not take notes at all, preferring to focus on asking questions and evaluating responses, while their colleagues record useful information.
A jury chart is indispensable to record information about the jurors. See Form 5.1. A chart used to record information may be constructed as the clerk reads the names of the prospective jurors, or the information to create the chart may be provided by the court administrator in advance. Information obtained during jury selection can be recorded by using abbreviations, symbols, or initials.
B. Questioning Exclusively by the Judge
Judges ask all jury selection questions in about two-thirds of the federal courts and approximately one-fifth of the state courts. The attorneys may—and usually do—submit questions for the judge to ask. Court rules commonly permit counsel to submit proposed questions in writing or orally.
Advantages of judicial questioning include efficiency and balance. The jury selection process is shortened, often taking less than thirty minutes or an hour. The disadvantages are that the judge does not know the case as well as the attorneys and may not ask necessary questions; the jurors may be hesitant to respond forthrightly because the judge is an authority figure; the judge may impliedly favor a party with selective questions; and the lawyers have little opportunity to follow up on responses, educate the jurors, neutralize their attitudes, develop rapport, or obtain commitments from them.
After a judge asks the questions, the attorneys may request that the judge ask clarifying or additional questions, with the record containing the enquiries proposed by the attorneys the judge did not ask. After the questioning has been completed, the lawyers may bring motions to strike jurors for cause, which the judge may grant or deny, and then the lawyers are able to exercise their peremptory challenges. See § 5.8.
C. Questioning by Judge and Attorneys
In most state courts and in some federal judicial districts, the judge and attorneys share the questioning. In these jurisdictions, the judge typically asks initial questions to determine grounds for challenges for cause, followed by enquiries from the attorneys. A judge may be able to inquire into difficult or delicate areas more readily than the lawyers. The extent to which a judge is involved in the questioning of potential jurors depends primarily on the philosophy and preferences of the judge.
State court rules and procedures vary widely regarding how jury selection is conducted. In major civil and criminal cases, lawyer examinations are commonly intensive and extensive. But in most civil cases, judges can restrict the scope of questions and often set a time limit.
The advantage of the shared questioning system is that the attorneys can obtain additional relevant information from the jurors, more readily exercising their challenges and establishing rapport. The disadvantage is that the process is time consuming, and lawyers may misuse the system by attempting to argue their case instead of obtaining information. The attorneys make their challenges for cause during or after all the enquiries have been completed, and exercise their peremptory challenges after all the questions have been asked of individual jurors or the entire panel.
1. Questions Directed to the Panel
Ordinarily, prospective jurors are questioned as a panel. General questions are asked of the entire panel and followed up with queries to individual jurors. When jurors are questioned as a panel, the attorneys usually make their challenges for cause and exercise their peremptory challenges after all questioning has been completed.
2. Questions Directed to Individual Jurors
In some courts and cases, the attorneys question each potential juror on the panel individually. The attorneys ask questions of one prospective juror before questioning another member of the panel. After questioning an individual juror, the lawyers may exercise a challenge for cause, exercise a peremptory challenge, or accept the juror. Counsel then query the next prospective juror. The process continues until the required number of jurors has been selected.
3. Questions to an Individual Juror Outside the Presence of the Panel
This process is used only in major criminal cases and some significant civil cases that involve sensitive matters, and is quite time consuming. Prospective jury members are individually questioned outside the presence of other jurors. In these cases, one juror at a time is brought into the courtroom and questioned to prevent a response from prejudicing or influencing other panel members. Counsel may then make a challenge for cause, exercise a peremptory challenge, or accept the juror. Jury selection is completed when the required number of jurors has been attained.
D. Introductory Remarks by Counsel
In jurisdictions that permit the lawyers to ask questions, counsel may make brief introductory remarks about the case before beginning questioning. The scope of these remarks depends upon what the judge and opposing counsel have said to the jurors. The remarks can include identifying the client, the purpose of jury selection, and a concise explanation of the factual story and legal issues.
Example (Plaintiff’s Attorney):
Welcome to your courthouse. I represent Jacob Marley, the plaintiff in this case, who sits next to me. Mr. Marley, a business partner of the defendant Scrooge, is here to obtain money from the defendant for the breach of a partnership agreement involving a financial institution they owned and operated.
As Judge Jarndyce has explained, I will be asking you some questions to obtain information regarding the issues in this case. Both sides need to know your attitudes and feelings regarding these issues to determine that you will be fair and impartial. My questions are not intended to make you uncomfortable, although it’s normal and natural for you to feel anxious because being in court can be an unsettling experience. If you don’t understand a question, please tell me and I’ll rephrase the question to make it understandable. I’ll direct some questions to everyone, and I’ll direct other questions to individuals. If you have any information regarding any question that I ask another juror, please raise your hand, and I will call on you.
During counsel’s introductory jury selection remarks, it is improper to make comments resembling opening or closing argument. Those comments should be reserved for summation or for opening.
Example (Questionable Jury Selection Remarks):
This civil case is about an extremely hardworking and trustworthy employee, Bob Cratchit, who is the poor plaintiff who had to sue Scrooge to obtain his meager salary. Bob signed a valid employment contract with this miserly defendant, who illegally refused to pay Mr. Cratchit the salary he earned and deserves. At the end of this case, we’re certain you’ll right this terrible wrong.
Jury Selection Questions
A. Types of Questions
The scope and extent of jury selection questions depends on what counsel wishes to accomplish, what the judge has asked the prospective jurors, the limits placed on the questioning, what information is already available to the lawyers, and what the advocates believe is needed to achieve the objectives of jury selection.
There are several types of questions counsel may ask:
- Open-ended questions,
- Close-ended questions,
- General questions to the entire panel,
- Specific questions directed to the entire panel,
- General questions to an individual juror, and
- Specific questions directed to an individual juror.
1. Open-Ended Questions
Open-ended questions allow prospective jurors to explain answers and express their opinions.
Examples:
Q: Sloan Sabbith, what do you do on a typical day in the newsroom?
Q: What do you commonly learn about after reading the WSJ?
2. Closed Ended Questions
Closed ended questions gather a relatively small amount of information from a juror and they are phrased to obtain a “yes” or “no” response. They are generally used to obtain specific information, to obtain commitments, and to educate the juror.
Examples:
Q: Ms. Segal, have you met Mr. Capone?
Q: Have you been to his store in Mercer?
Q: Can you be fair to Mr. Capone as you listen to his testimony?
3. General Questions to the Entire Panel
Questions may be directed to the entire panel. These enquiries may seek short responses or individual explanatory answers.
Examples:
I am going to ask some general questions about the Hockey Hall of Fame and follow up with more specific questions.
Q: Have any of you visited the Hockey Hall of Fame?
Q: Tell us about your experience at the Hall of Fame.
Q: Did you enjoy your time touring the Hall of Fame?
4. Specific Questions to the Entire Panel
After the prospective jurors respond to general questions, counsel may ask follow-up questions. These queries may seek specific answers from individual members of the panel.
Examples:
Q: When did you attend a Tommy Tutone auction?
Q: What did you buy, if anything, from the Tutone auction?
5. General Questions to Individual Jurors
Potential jurors will provide varying answers to questions asked of the panel. Counsel will need to follow up with questions directed to those individuals who responded.
Examples:
Q: Ms. Chen, you said that you were involved in a hoverboard accident as a child. Please tell us about that experience.
Q: Ms. Du Bois, you raised your hand when I asked if any of you knew any members of the union. How do you know someone with the union?
6. Specific Questions to Individual Jurors
The lawyers may need to inquire further with potential jurors and ask individual questions of them. These questions may seek “yes” or “no” answers or short or more detailed explanatory responses.
Examples:
Q: Ms. Kachina, you said you attended ceremonial dances on the reservation, did you participate in the dances?
Q: How did you participate in the ceremonial dances?
B. Selecting Questions
The types of questions that should be asked depend upon the limits the judge has placed on the questioning, the preference of the lawyers, the responses of the jurors, the nature of the case, the time available for juror interviews, and the purpose for asking the questions. General questions directed to the panel as a whole are usually appropriate if “yes” or “no” answers or short explanations are expected. Specific questions directed to individual jurors may be asked as follow-up queries or to probe new areas.
The jurors also need to know how they are expected to respond to questions. The lawyer should make clear, especially in asking questions of the entire panel, whether the jurors should respond verbally or by raising their hand. If there are many prospective jurors, asking them to raise their hands makes it easier to identify individuals.
Some types of questions should be directed to the panel, while others should be asked of jurors individually. The nature of the questions and the anticipated answers often determine when and what types of questions should be asked of potential jurors. Attorneys often ask questions of the entire panel during the beginning of the jury selection process, postponing individual questions until they establish some rapport with the jurors. Questions seeking grounds for challenges for cause are commonly asked of all panel members because the questions are less threatening when all jurors are asked. Questions involving sensitive or personal matters may also be more effectively directed to the entire panel because the impact initially will be less intrusive on individual jurors.
Questions should be asked in a manner that involves all prospective jurors. A mix of general and specific questions usually maintains the attention of the entire panel. Jurors should be treated equally. However, if a lawyer knows for certain that a juror will be struck, that juror need not be questioned to the same extent other jurors are questioned.
C. Concluding Questions
The concluding questions of jury selection should elicit a positive and affirmative response that supports a verdict for the client.
Example (Civil Plaintiff):
If we present sufficient evidence that proves Ms. Kramer’s case, will each of you be able to return a verdict in favor of the plaintiff?
Example (Civil Defendant):
Will each of you agree that you will not decide this case until you have heard all the evidence, and that you will keep an open mind and wait until after we have presented our case on behalf of Mr. Kramer, the defendant, before reaching any decision?
Theories of Jury
Selection Questioning
Successful trial lawyers have developed several jury selection theories and models to determine whether a juror will be favorable or unfavorable. Efforts made to determine which jurors will be biased or prejudiced are varied and diverse. Whatever methods are used, it is important to remember that jury selection systems are more art than science.
Attorneys develop and employ approaches based largely on their experience, data, judgment, past cases, predictions, intuition, feelings, and advice from colleagues or consultants. These different jury selection theories produce methods, some of which are not necessarily based on objective, discernible intuition factors. Specific approaches should not be used without a great deal of consideration given to their predictive accuracy.
The following examples present theories, methods, and systems advocates use to remove prospective jurors from a panel. The ultimate goals are to discern which potential jurors are likely to be favorable, which should be de-selected, and which probably will exert significant influence over other jurors during deliberations. Commonly, trial lawyers use a combination of the following approaches.
A. Impressionistic Evaluations
This approach relies largely on the intuition of the attorney — and frequently of the client. Counsel, alone or with clients, determine which jurors they like or do not like, and which jurors seem to like the client, the case, and counsel. These judgments are often based upon a subjective assessment of each potential juror. It may be as simple an analysis of “I like this juror” or “This juror appears to like us.” Of course, it helps to have highly predictive insights and correct impressions when using this approach.
B. Generalizations and Stereotypes
Many attorneys select jurors based upon generalizations regarding people. The attorney relies upon characterizations to predict how a prospective juror will react and vote. Some of these generalized stereotypes may have merit (e.g., loan officers at rural banks are often fiscally conservative); other stereotypes may be speculation (e.g., suburban residents dislike distant government agencies); still other stereotypes are nonsensical (e.g., svelte individuals who have multiple siblings favor nobody). Stereotyping an individual based on generalizations about a class of people can be detrimental or helpful, depending on the validity of the underlying data.
C. Character and Personality Traits
Some lawyers identify favorable jurors based upon each juror’s apparent character and personality traits. The lawyer obtains information and observes the prospective jurors to determine these traits and then decides which of these jurors may be most favorable to a client. Examples of character and personality traits include: how authoritative or assertive the juror appears, how good a communicator or listener the juror is, and how honest and open the juror will be.
Attorneys may also rely on nonverbal behavior and reactions of potential jurors, in addition to their verbal responses to assess their real attitudes and feelings. Counsel can observe the jurors closely for positive and negative body language, attempting to interpret this behavior in assessing biases and prejudices.
D. Data and Information
Counsel may focus primarily on the data obtained about the prospective jurors from various sources and the information gained through jury selection. The hope is to discern objective factors that validate more accurate decisions regarding which jurors should be de-selected. Available sources may provide sufficient information to support better informed judgments regarding how and why potential jurors may vote. The nature, extent, and breadth of this data may provide substantial bases and rational reasons regarding which jurors should be removed. Properly analyzing this information can result in more knowledgeable forecasts. Data analytic experts and AI resources, as explained in subsequent methods, can assist counsel with this approach.
E. Jury Profile
Advocates can attempt to develop a profile of a favorable juror involving social, family, economic, political, educational, and psychological attitudes, and views. The goal is to identify potential jurors who may be favorably inclined toward the position of one party or unfavorably predisposed toward an opponent’s position. This approach is based upon a jury profile developed in advance of trial to indicate in general terms how a particular juror may decide a case based on specific backgrounds or upon generalizations derived from a larger group in society. A jury profile attempts to describe the characteristics of the ideal, mythical juror who hopefully is prone to return a winning verdict.
Some attorneys believe this process is very worthwhile and would not proceed to trial without this effort. Other lawyers do not find this procedure useful because it is too speculative and the chances of finding ideal jurors on the panel are remote. Many lawyers believe it can be worth the effort to create a profile that can be used as a reference to evaluate the prospective panel of jurors. A jury profile should not be a controlling replacement for the judgment of counsel and the client who have the ultimate responsibility to select jurors.
A jury consultant or a psychologist or sociologist with expertise or experience with jury selection may help design a juror profile. If sufficient economic resources are available, this approach might be useful in supplementing the assessment by counsel and the client of prospective jurors. This information may also be obtained less expensively from books, articles, treatises, websites, internet sources, social networks, and AI resources. A jury profile may be created by reviewing the factual and legal issues, considering how jurors might identify with the client and witnesses, and by predicting how jurors might vote in jury deliberations. Jurors are then selected from the panel who most closely match the characteristics of people who identify with the case theory, the participants, and the issues.
A jury profile of unfavorable jurors may also be designed. This critical juror profile corresponds to the opponent’s favorable, mythical juror. Characteristics and traits of individuals who are least likely to identify with the party and the claims or defenses are classified. During jury selection, prospective jurors who have these characteristics and traits may be challenged or struck from the panel.
F. Social Science Research
Attorneys can rely on social science data to select jurors in cases where clients have the resources to pay for the development of this information. Gen AI may provide affordable relevant data. See § 1.10[E].These approaches identify characteristics that favorably correlate with the significant issues in a case. Reputable jury consultants can research appropriate demographic factors and sample the community to determine which prospective jurors may have these characteristics. Information about a juror’s job, marital status, neighborhood, finances, social media communications, hobbies, and lifestyle may reveal information that may match favorable factors. These efforts rely upon the expertise of social scientists or experts in other behavioral disciplines, and lawyers may be reluctant to rely extensively upon these non-lawyers in selecting jurors.
G. Improper Theories
There are some juror selection theories that are unacceptable or unsuitable. It is unconstitutional to use race, gender, or religion as the sole or primary reason in choosing jurors. Trial lawyers must not use these factors in selecting a jury. If a prohibited factor appears to be the reason why a juror is being struck, the advocate has the burden to establish the legitimate reasons why a juror is being removed. See § 5.9(H).
H. GENERATIVE AI and LLMs
For jury selection, Gen AI and LLMs automate and enhance several aspects of both preparation and execution. For instance, lawyers could enter case details and legal requirements into the LLM, which can then help generate and refine jury selection questions. LLMs can also analyze responses from potential jurors, helping attorneys identify possible biases or predispositions.
Lawyers can also use LLMs to enhance training, simulations, and mock trials. Attorneys can use LLMs to simulate various juror profiles and practice their questioning strategies — or refine their approaches based on AI-generated feedback. This kind of simulation could provide insights into potential juror reactions, allowing counsel to adjust their strategies accordingly.
Questions and Approaches
to Achieve Objectives
The judge has discretion to allow or disallow questions depending upon the purpose and nature of the inquiry. In all jurisdictions where the attorneys may ask questions, counsel have a right to ask questions to obtain information to support grounds for a challenge for cause. Lawyers may also ask questions to obtain information needed to exercise peremptory challenges.
Judges have broad discretion to permit questions that serve the other jury selection objectives. Some judges allow the advocates to ask a wide range of questions that educate, develop rapport with, and obtain commitments from jurors. Other judges restrict the scope of these questions or prohibit them altogether. Counsel need to ascertain any limitations the court places on the questioning. See § 5.4(A).
Many jurisdictions limit jury selection questions to areas that establish bias or prejudice and prohibit or limit questions designed to educate or indoctrinate potential jurors. Many other tribunals do permit attorneys to question jurors to achieve broader objectives. Categorizing jury selection questions into those that are designed to show bias or prejudice and those that are intended to educate or indoctrinate the jury is often problematic. Many questions serve multiple purposes, and legitimate questions designed to elicit bias and prejudice may also achieve broader objectives.
Counsel should follow common sense communication guidelines when questioning prospective jurors:
- Engage the jurors in conversation.
- Be receptive and responsive.
- Encourage the jurors to give complete and honest answers.
- Listen carefully to answers.
- Observe nonverbal demeanor.
- Reward favorable answers with verbal and nonverbal responses.
A. Obtaining Information
1. Information About Jurors
To identify favorable jurors, the lawyer should collect and review as much information that is readily available about prospective jurors. In most cases, the attorneys do not know who the jurors will be until the jurors arrive in the courtroom, limiting the opportunity to obtain preliminary information. In some jurisdictions, information about the prospective panel of jurors may be obtained before trial. Addresses of the panel provide generalized information concerning the neighborhood, home, and socioeconomic status of the potential jurors. Information about family, occupation, prior jury duty, and other background information is commonly available to counsel at the time of jury selection or earlier.
In jurisdictions that provide advance information and with a client that has substantial resources available, a reasonable investigation may be conducted of the prospective jury members. Internet and AI search methods are available that can provide helpful information concerning prospective jurors. Social network communications may be accessible. Investigators may be able to contact acquaintances and others to gather information about panel members, but no personal contact may be made directly with prospective jurors. In some jurisdictions, records are maintained about prior jury service. Prosecutors, criminal defense counsel, plaintiff personal injury trial lawyers, or defendant insurance attorneys may also maintain information about jurors, particularly in smaller communities.
These approaches must be carefully, properly, and legitimately conducted. Counsel must respect and not violate the privacy rights of potential jurors and their family and friends. Lawyers and retained investigators must comply with federal and state laws and local regulations that govern and restrict inquiries and investigations.
2. Information About Jury Duty
Trial lawyers need to review the jury orientation program to discover what information prospective jurors receive before they appear in the courtroom. This may be done by obtaining a copy of the information, by watching the recorded presentation, or by talking with court personnel. The location of the jury waiting room and juror activities while waiting may also influence juror perceptions about the legal system. Counsel should become familiar with the jury room, whether cellular or wireless access is available, what kind of magazines or books the jurors have access to, what kind of games or other activities the jurors participate in, and where jurors are likely to have lunch. The more the attorney learns about what happens to the jurors prior to jury selection, the better able the attorney can ask informative questions.
3. Information from Observations of Jurors in the Courtroom
a. Prospective Jurors in the Courtroom
The advocate can begin observing the prospective jurors as they enter the courtroom. The lawyer should observe their appearance and conduct, any apparent discomforts, who they have befriended, and whether individuals appear talkative, quiet, or nervous. This first impression may be helpful in deciding what questions to ask and in de-selecting jurors.
b. Prospective Juror Associations
Some of the prospective jurors may have spent time together or may have formed friendly or unfriendly relationships. Particular attention should be paid to these apparent relationships, as they will affect the cohesiveness of the jury. Attention should also be paid to those jurors who appear to emerge as potential leaders, as they may influence other jurors.
c. Juror Appearances and Bearing
Nonverbal cues and body language prior to jury selection and during the selection process may help determine if a potential juror is favorable. Did the juror make eye contact with the attorney or client? Did the juror appear to be interested or alert during questioning? Did the juror seem more at ease in answering a party’s questions? Jurors who appear to be comfortable in the courtroom may be willing to follow instructions more readily than those who are uncomfortable being in court.
d. Observations by Team Member
Another trial team member may observe the prospective jurors during jury selection and advise trial counsel regarding those observations. This individual, not occupied with questioning, can have a more focused opportunity to observe juror behavior.
4. Factual Information
If a question seeks particular information, the question should be phrased to generate a specific response. There are several areas of questions that should be considered with every potential juror. The following examples provide sample questions:
Examples:
Employment Status
Q: What kind of work do you do, Mr. Krebs?
Q: What are your responsibilities as a supervisor?
Q: How do you feel about being a supervisor?
Family Status
Q: How old is your child, Ms. Gillis?
Q: What school does Dobie attend?
Q: What volunteer work do you do at his school?
Educational Level
Q: What school did you attend in Zombieland, Ms. Breslin?
Q: Have any of you taken courses where the human brain has been studied?
Q: What kind of neurobiology course was it?
Life Experiences
Q: Mr. El Muerto, what do you do on a typical Saturday?
Q: What are your hobbies?
Q: What do you do with your vacation time?
Previous Jury Experience
Q: What kind of a case did you serve on as a juror, Mr. Davis?
Q: What was the outcome of that criminal case?
Q: What attitudes about our system of justice might you have based on your experience?
Experience with the Court System
Q: Have any of you ever been involved as a plaintiff or defendant in a civil case?
Q: Please tell us about that experience, Professor Pomfrit?
Q: Does that experience affect how you may consider this case?
Experience in Fields Relating to the Case
Q: Do you have any relatives or friends who are teachers, Mr. Byron?
Q: Ms. Shelley, do you know anyone who’s been the victim of a crime?
Knowledge of Case
Q: Because you have heard of the defendant, S. Peter Pryor Junior College, do you have any feelings, one way or the other, that may affect your judgment about this College that educates students here in our town?
5. Relationships with Parties, Lawyers, and Witnesses
These questions are often asked by the court at the start of jury selection. Counsel may inquire further to clarify answers.
Examples:
Q: Minny Jackson, you raised your hand when the judge asked you if you knew the plaintiff in this case. How do know Hilly Holbrook?
Q: A few of you indicated you have heard about the defendant Madea Simmons. I’ll ask Ms. Breaux, how do you know about Ms. Simmons?
6. Opinions and Attitudes
These questions seek opinions and attitudes of the jurors, and may be phrased either as open-ended or leading questions.
Examples:
Q: Have you heard about the concept of a living will, Luis Kutner?
Q: Have you heard about the belief that people, before they die, can choose to have extraordinary life support ended if they have a terminal illness and there is no hope at all for continued life?
Q: Will the fact that this case involves Transylvania Transplant Hospital which employs people in this community influence you one way or another in reaching a fair verdict?
7. Demonstrating a Bias
Sensitive and difficult issues of possible bias and prejudice should be addressed.
Example:
Q: Ms. Zealot, you have told us that it would be very difficult for you if a family member were to marry someone of a different religion and that your feelings about religion are very important values in your life. You know that this is a religious discrimination case. Because your feelings are so strong and, perhaps, even controlling, would you agree that it would be impossible for you to be fair and neutral as you evaluate the evidence in this case?
8. Searching Websites, Social Media, and Blogs
Websites, social media networks, and blogs can be a source of information about a case, parties, legal issues, and disputed facts. The judge will instruct the jurors who are selected to be the jury that they cannot seek information about a case from outside sources. Counsel may inquire into these matters during jury selection.
Example:
Q: Have any of you searched the internet or viewed social network postings for any information about the parties in this case involving Links.net?
9. Pretrial Publicity
Media, newspapers, radio, and network and cable programs may have an influence on the ability of the jurors to be neutral and impartial.
Examples:
Q: Do you recall hearing about this case in the news, Mr. Turing?
Q: How do you feel about the defendant in this case based on what you have seen shown on television, Mr. Babbage?
The words people use to describe the publicity may reveal their attitudes and provide a basis for asking more questions about their views.
B. Educating the Jurors
Questions may be asked that provide information to the prospective jurors. Appropriate questions can be designed to tell them about the evidence, the law, and other facets of the case.
1. About the Case and Facts
The judge and opposing lawyer may have provided the prospective jurors with some information which may need to be supplemented or corrected.
Examples:
Q: Are you all aware, from what Judge Faith told you, that this is not a criminal case involving Ms. Simpson, but is a civil case?
Q: In this case the plaintiff is saying that the defendant unlawfully caused the death of a person, her husband, Homer. Do you understand that this is unlike a criminal case, and in this case, no one will go to jail if you find that the defendant is responsible for Mr. Simpson’s death?
2. About the Parties
Advocates can introduce or describe relevant client backgrounds.
Example:
Q: Judge Erskine-Brown asked you if you knew Horace W. Rumpole, who is the plaintiff in this case. He is a widower. His wife, Hilda Rumpole, died last fall. She was very involved in charitable work in our city. Did any of you know her?
Example:
Q: The plaintiff in this case emigrated from Somalia five years ago. Because of that move, she lost everything and had to start anew in this country. The plaintiff was a doctor in Somalia but because of our medical regulations she cannot practice medicine. Do you know anyone who has moved from another country and has had those or similar experiences?
Example:
Q: Coco Chanel is a fashion designer and consultant, and she will testify in this case as an expert witness. Have any of you bought her haute couture?
3. About the Witnesses
Key witnesses can be introduced to the prospective jury panel.
a. Lay Witness
Example:
Q: Cass Gilbert is the only eyewitness who will testify in this case. He will tell you that after work he had two bottles of beer and chicken wings at a bar and left to go home. Over an hour later he saw the building collapse. Do any of you doubt that someone like Mr. Gilbert, who earlier ate and drank, can afterwards observe an event and remember it?
b. Expert Witness
Example:
Q: Dr. Rose Mayo will be testifying and will be telling you that she is a graduate from New York Medical College and a California Board Certified orthopedic surgeon. She currently serves with Doctors Without Borders. Will you be able to weigh her expert testimony based on her qualifications, training, and experience, and not be influenced because Dr. Mayo has been recently providing medical services primarily in foreign countries?
4. About the Law
Some critical legal issues can be briefly described as a preface to a question, as depicted in the following examples.
a. Burdens of Proof
The common standards of proof—“beyond a reasonable doubt” in a criminal case and “preponderance of evidence” in a civil case—may be unfamiliar to jurors. To avoid jurors confusing the different types and degrees of proof, it is important they understand the differences from the beginning, so they do not apply the wrong standard.
Example (Criminal Case):
Q: In a criminal case the defendant does not have to take the stand and testify. That is a constitutional right we all have. It may be that some people might consider the defendant guilty if she does not testify. Will you be able to set aside any such thought and follow the law that rightfully allows the defendant not to testify?
Q: Do you understand that as Amelia Dyer sits here in this courtroom, she is presumed innocent?
Example (Civil Case):
Q: Do you understand that the burden of proof in a civil case is by a preponderance of the evidence that is much lower than the burden of proof beyond a reasonable doubt that you might have heard about in a criminal case?
Q: Will you be able to apply this burden of proof in this civil case involving an alleged civil assault by my client, Lord Cardigan?
b. Liability
Questions can also help prospective jurors understand liability issues.
Examples:
Q: One of the issues in this case is whether the defendant Ghostbusters Proton Pack Company is strictly liable for what happened. By chance, has as anyone heard of the doctrine of strict liability?
Q: Do you think it’s reasonable to say that the GPP Company that made a defective product is responsible for the deaths of others caused by the defect, even if it didn’t intend to cause any harm or injuries?
c. Damages
And questions can help the potential jurors understand damages.
Examples:
Q: If you find the defendant Professor Prosser liable for the personal injuries suffered by the plaintiff, the law holds him responsible to pay money damages to compensate plaintiff for her loss. Do you understand that?
Q: Plaintiff may be able to recover for her pain and suffering in this case. Have you heard of that legal term—pain and suffering—before?
d. Defenses
If a juror may be unwilling to accept a particular defense, the juror could be removed for cause. Questions can inform potential jurors about the correct legal standard.
Examples:
Q: In this case the defendant Mandrake the Magician is going to tell you that he was somewhere else with his friends and couldn’t have committed the crime. That’s called an alibi. Are all of you familiar with that term?
Q: Do you think it’s possible that a person can be accused of something and actually be the wrong person?
e. Elements
Jury selection also provides the opportunity for the advocate to explain to the prospective jurors the critical legal elements of a case.
Examples:
Q: Do you understand that in this case, where Goliath was killed by a staff and sling, there may be a number of different possible offenses that occurred?
Q: Do you realize that the term “manslaughter” is a lesser offense than first-degree murder?
5. About Weaknesses and Strengths in the Case
The attorney may acknowledge weaknesses during jury selection. If dealt with in a straightforward manner, the effect of the weaknesses may well be diminished.
Example:
Q: Frances Stevens has a criminal record. Five years ago she was convicted of burglary. She will take the stand and tell you that her days of being a “cat burglar” with John Robie have long been over. Will you be able to decide the case on the evidence presented in court about what happened in this case and not what happened five years ago?
C. Developing Rapport with Jurors
Jury selection questions must be asked in a way that develops a positive rapport with the prospective jury. The trial lawyer who makes a favorable impression during jury selection benefits from the lasting effect of this assessment throughout the trial.
Rapport can be created and developed in several ways. A respectful approach, a caring outlook, appropriate eye contact, attentive listening, appropriate body language, and a genuine interest help reduce juror anxiety and build rapport. Overall, counsel needs totrustworthy.
The lawyer must also be well prepared. Poorly phrased questions, inappropriate enquiries, and aimless questioning portray the advocate as ill prepared and unprofessional. The more comfortable and at ease the jurors become with the attorney and client, the more attention and focus they can devote to the case.
1. Developing Rapport Early
The prospective jurors often will notice the attorneys and parties upon entering the courtroom. All at counsel table should be prepared to receive them and appear to welcome them. The jurors may observe the lawyers, clients, and witnesses in the courtroom or elsewhere in the courthouse as they converse with clerks, bailiffs, and other court personnel. Counsel must appear professional and polite.
2. Properly Addressing Jurors
Jurors should be addressed respectfully by their surnames. While some potential jurors may be more sensitive to this issue than others, an effort should be made to ascertain the juror’s preference, such as Mr. Figaro, Ms. Carmen, Mrs. Electra, or Madame Butterfly. A military person may expect to be addressed by a title such as “Captain” or “Sergeant.” A scientist or professor may prefer to be addressed by the title “Doctor.” Attorneys should review the juror questionnaires, or ask the jurors their preference, or request that the judge or clerk obtain that information before the lawyers question them.
3. Relying on Appearances to Develop Rapport
Attorneys and clients must consider how they wish to appear and whether they appear that way in the view of the prospective jurors. Section 1.8 discussed considerations of appearance, dress, bearing, mannerisms, and related considerations. These factors should be used to effectively enhance rapport with the jurors.
4. Using Questions to Develop Rapport
a. Style of Asking Questions
An effective approach is to use a conversational style with the potential jurors. Questions should be delivered with a calm voice using appropriate pauses and modulation. This helps counsel appear interested in the juror’s answers. Careful listening and paying attention enhance interest. Questions that are read or delivered in a monotone voice appear to be routine questions and, while they may obtain some information, they do little to develop positive rapport.
b. Recognizing Discomfort/Anxiety
If the attorney recognizes that a potential juror is uncomfortable or anxious about being questioned, counsel should sincerely acknowledge the discomfort and attempt to help the juror relax. Lawyers should not be overly solicitous to avoid appearing insincere.
Example:
Q: Ms. Elle-Woods, it appears to me that you are troubled with the question I just asked. I’ll rephrase it so it makes better sense.
c. Questions Permitting Juror to Clarify
The attorney can demonstrate sensitivity and interest by allowing the prospective juror to correct a misstatement or expand on an answer.
Example:
Q: Earlier, I asked you questions about damages, and you indicated that you would award damages to someone who has proven severe emotional distress. However, later you said you felt it would be hard to judge the level of distress suffered because people experience it differently. Dr. Freud, will you be able to make a fair judgment about the emotional distress the plaintiff suffered after you hear and see all that tragically happened to her?
d. Manner and Tone of Questions
A potential juror may be bothered by an awkward or rambling question or by the tone in which a question is asked. The lawyer must accept the blame for asking that kind of question and rephrase it, rather than implying that the juror is at fault.
Example:
Q: What I am really trying to ask is . . .prior to the last question I asked you and before I was speaking about the other issue . . . I’m sorry, that just didn’t make sense. Let me try again, Ms. Malaprop.
5. Dealing with Hostile Jurors
Questioning a prospective juror who is obviously hostile or appears angry or upset is difficult. One approach is not to ask a hostile person any questions, with the idea that the person will be removed later with a peremptory challenge. In so doing, the attorney may avoid the risk of an angry juror influencing other jurors through negative answers to questions. However, an open, direct approach to resentment or antagonism may go a long way toward developing rapport with the other jurors, or may work towards diffusing the hostility so that the potential juror becomes an asset rather than one who has to be removed. If this approach fails, a basis for a challenge for cause may be established by showing the hostile juror to be prejudiced against the case, client, or attorney.
Example:
Q: Ms. Nightingale, you appeared upset when I asked you about lawsuits against surgeons. You told us you thought these doctors were a bunch of “overpaid unprofessionals.”
A: You bet I did.
Q: Do you ever go to a doctor yourself for any kind of treatment?
A: I’ve been to some doctors in the past, but never a surgeon.
Q: Have you ever been treated in a hospital?
A: Fortunately, no.
Q: Now, you have told us that you have children. Have they ever gone to a doctor?
A: I’ve never taken them. My husband does.
Q: You haven’t taken them to have shots or any kind of preventive treatment or health care?
A: I don’t like dealing with doctors, so I don’t.
Q: Would you agree that it would be very difficult for you to be fair to the defendant doctor in this case, and to listen to all the evidence before making up your mind?
A: I can’t trust what doctors say. I don’t believe them.
Q: I take it your husband does, and you allow him and your kids to be helped by doctors?
A: That’s right.
Q: But you do not trust, respect, or really believe doctors?
A: You’re right about all that.
6. Avoiding Embarrassing Situations
Frequently attorneys must ask questions that are personal and potentially embarrassing to the prospective jurors. Counsel need to be aware of possible adverse reactions to such enquiries. Questions should be worded carefully to avoid or minimize negative jury reactions.
Example:
Q: Mr. Marx, if you were out on the street one day and an interviewer stopped you and asked you whether you considered yourself a liberal or conservative or independent or other, how would you describe yourself and why?
Q: Sue Sylvester, if you could go back and see your favorite high school cheerleading teacher and that teacher asked you how things were going for you, what would you say?
Comedic attempts may also cause embarrassments. Jokes are perilous because the attorney might appear flip and uncaring. Natural humor, suitable in a situation or in response to a juror’s humorous comment, may create an appropriate light-hearted moment.
7. Giving the Jurors a Chance to Talk
When asking open-ended questions, the attorney should listen to the relevant answer and not interrupt. Encouraging narrative juror responses generates more information about them. If a prospective juror appears to hesitate, the lawyer can be supportive by using a silent pause, an affirmative head nod, or phrases like, “Go on” or “Please continue.” If a juror rambles on, counsel may politely interrupt and ask another question.
8. Thanking Jurors
Counsel may recognize the willingness of potential jurors to be jurors. It is appropriate to sincerely thank them for being candid and open with their responses.
Example:
Thank you all very much for being so direct with me and for answering my questions honestly. We all appreciate that you have been thoughtful in answering these questions, even the challenging ones concerning personal and family matters.
D. Neutralizing Negative and Enhancing Positive Perceptions
Obviously, prospective jurors bring their opinions and life experiences with them to the courtroom. All jurors have some biases and prejudices and hold misperceptions about trials, jury duty, what trial lawyers do, and what clients deserve. People have difficulty publicly admitting their biases and prejudices, especially in a courtroom in front of strangers. Sometimes their answers are incomplete half-truths, misleading, or even false. Questions can be crafted to encourage complete, honest answers.
Example:
Q: Beyond what Judge Soong has told you about this case, you don’t know anything about the case, do you?
A: That’s right.
Q: As you sit here now, you have no strong feelings one way or the other about this case, do you Mr. Data?
A: I don’t.
Q: You don’t have any biases or prejudices that unduly influence you one way or another toward either the plaintiff or the defendant in this case?
A: That’s right.
Q: And the only evidence you are going to rely on to decide this case is the evidence presented during this trial?
A: Yes.
Of course, the answers may not be quite accurate. Nobody is completely neutral. The varying experiences and beliefs of jurors will influence their decision-making. A major objective of the jury selection process is to learn about these attitudes. Questions that are designed to discover bias and prejudice should be used to neutralize negative opinions and build upon positive feelings that jurors may have toward the case, client, or counsel.
Example:
Q: Real trials are not like television programs such as “Law and Order” and reruns of “The Practice.” And you understand that real lawyers don’t behave in actual courtrooms the way they are so often portrayed in the movies?
As importantly, advocates must deal with inappropriate stereotypes or improper perceptions regarding clients or witnesses.
Example:
Q: You are going to learn that Tom Joad, the plaintiff, is unemployed. He has not been able to find a job for over a year and has had to receive financial assistance to support himself, which he is entitled to receive from the government and our community, in order to live. The fact that Mr. Joad has not worked does not affect in any way what happened to him in this case. Will all of you be able to set aside feelings — one way or the other — you might have about unemployed people receiving public and private aid in reaching a fair and just verdict in this case?
The potential jurors may have preconceived notions about issues in a case such as soft tissue injuries, psychiatric issues, high monetary verdicts, or questionable lawsuits similar to the case on trial. These attitudes very likely need to be explored.
Example:
Q: This case involves a corporate acquisition. While the deal may appear to be complex and confusing, the events at issue are simple and straightforward. Do you have any personal or professional experiences that are negative or positive about any Quaker executives involved in the Snapple takeover?
E. Obtaining Commitments
Counsel may attempt to obtain a promise from the prospective jurors to not hold some fact or weakness against a client or a witness. Such a request should be phrased as a question seeking a “yes” or “no” response.
Example:
Q: In this case Mata Hari is going to tell you that she was sexually assaulted by the defendant. She will also tell you that although she is a prostitute, she repeatedly told the defendant that she didn’t want to have sexual relations with him. He then brutally forced her to have sex with him by punching and beating her. Do you believe that everyone, no matter who they are, has the right to make a voluntary decision about their own sexual partners?
While seeking to obtain commitments can be difficult and troublesome, questions may be designed to properly obtain appropriate responses. Most jurors will hold themselves and other jurors to these commitments. Studies of video recorded mock jury deliberations confirm that jurors will speak up and remind others about a commitment if that subject arises as an improper factor in reaching a verdict. Commitments made during jury selection can be used during summation to remind the jurors that they must honor their promises during deliberations.
F. Avoiding Uncommon Problems
In addition to conducting jury selection using proper and effective approaches, it’s wise to avoid common or uncommon problems. These include:
- Talking too much. Asking reasonably short questions and listening carefully should comprise the process. And then listening some more.
- Discouraging responses. It can be difficult or even risky to invite jurors to say what they mean and mean what they say. It’s usually wise to encourage jurors to answer questions, however arduous it is to listen.
- Becoming defensive. Some jurors will respond with statements that you would rather eschew. You’ll need to avoid sounding and acting defensive in your follow-up questions.
- Interrogating the jurors. It’s tempting to sound and act like a lawyer and try and get jurors to respond with helpful comments. You’ll also need to avoid interrupting and trying to control their responses.
- Asking overly intrusive questions. There may be a fine line between asking fair and unfair questions. If in doubt, ask the judge to explore sensitive enquiries or preface the delicate questions with an explanation of the need for the information.
- Probing—or not probing—the why. Fact questions may be easy to ask. “Why” questions may produce useful information, although they may be hazardous and result in unanticipated remarks.
- Not appearing caring or compassionate. It’s better to err on the side of empathy and sympathy so jurors view you as sincere, honest, and trustworthy.
Challenges
Attorneys may remove a prospective juror based on two primary types of challenges: challenges for cause and peremptory challenges. A third type of challenge, rarely available, is a challenge to the array. This third challenge claims that the process used to select the pool of jurors was unlawful or unconstitutional because the selection system excluded or restricted certain classes of people from the jury pool. In the past, prospective jurors in some jurisdictions were selected only from voter registration records that excluded some citizens. Lawful and constitutional procedures were developed to identify and obtain jurors from all parts of the community. Challenges to the array are historical events, although it is possible that impermissible selection procedures could exist in some places.
A. Challenges for Cause
A motion to challenge for cause seeks to remove a prospective juror from the panel. Trial lawyers may request a judge to exclude a juror for one or more of three reasons:
- Lack of juror qualifications/abilities (e.g., a person has a major incapacity making it impossible to be in a lengthy case),
- Actual bias or prejudice (e.g., a juror has manifested overt bias or prejudice), or
- Implied bias (e.g., a juror has a significant relationship with a party or witness).
Statutes, rules, or case law ordinarily establish the grounds supporting a challenge for cause. Certain types of persons are legally disqualified for jury duty. These individuals include judges and close relatives of parties and attorneys. The judge or a clerk often screens the jurors and disqualifies those individuals who are excluded by law.
A challenge for cause may be based on either actual or implied bias. Actual bias is present when the prospective juror has a state of mind regarding a particular case, the parties, or witnesses that prevents the juror from acting with impartiality and without prejudice to the substantial rights of a party. For example, a potential juror may admit that she strongly dislikes the defendant car dealer because of previous bad experiences in having her car serviced by an affiliated auto dealer. Implied bias may be based on existing relationships between a prospective juror and a party or major witness even without a showing of actual bias. For example, a potential juror who is a good friend of a party will be excluded.
1. Establishing Bias or Prejudice
For a court to grant a challenge for cause, counsel must show that the prospective juror is so obviously biased or prejudiced that it would be impossible for the juror to be fair. In establishing a cause challenge, having jurors simply admit that they are biased or prejudiced is usually insufficient. Otherwise, jurors who want to avoid jury duty would readily assert those attitudes. The answers of potential jurors must reveal sufficient reasons why they are unable to be fair and impartial followed by responses confirming bias or prejudice.
Example:
Q: Would all those reasons make it very difficult, or impossible, for you to be fair and impartial in this case, Mr. Hamlet?
Q: You would agree that it would be better for you if you served as a juror in some other case that does not involve the fratricide issues involved in this trial?
Example:
Q: Ms. Paige, you understand that the plaintiff is claiming that the defendant got very angry and struck her on the head with a baseball bat. Is there anything about this case, before having heard the evidence, that may lead you to believe you could not be fair and impartial to both sides?
A: Well, yes.
Q: Could you tell us, please, what that might be?
A: I’ve been at Little League games and watched how parents get out of control. I’m terribly bothered by anyone assaulting another person. I heard about what happened in cases like this from my Dad, and such anger is crazy. Something should be done to penalize anyone who is accused of hurting another.
Q: You do understand that you’ll need to be open-minded until you hear and see all the evidence?
A: Maybe. But the victim needs to be given the benefit of any doubt.
Q: Is that view making it difficult for you to be impartial in this assault case?
A: I can’t imagine how the defendant could win me over.
Q: It appears that it would be impossible for you to serve as a juror in this trial, is that correct?
A: That’s true. My mind is…made up.
Q: You do recognize others think differently, and they can be fair-minded and provide defendant with a fair trial?
A: I appreciate that, and can respect them for it.
2. Procedure
An attorney challenges a prospective juror by moving the court to strike the juror for cause. An advocate may indicate acceptance of a juror by advising the court that the juror is acceptable or by using a phrase such as “We accept this juror,” “I pass this juror,” or “We waive the right to challenge this juror.” Some judges ask counsel whether they wish to challenge any juror, while other judges expect the lawyers to affirmatively bring a motion to challenge. An attorney who challenges a juror for cause must state the motion and specific grounds.
Example:
Your Honor, it is clear from Madam Pomfrey’s answers that her past experiences with the staff at Hogwarts School of Witchcraft and Wizardry make it impossible for her to be fair and impartial toward my client. She agreed she wouldn’t be able to put aside her negative attitudes and bad feelings about the school in reaching a verdict. For these reasons, we request she be excused.
In some jurisdictions, this challenge is made at a bench conference or in chambers. In other jurisdictions, this challenge is made in front of the jurors. Preferably, challenges for cause should be made outside the hearing of the jury. If an attorney announces in front of the jury “We challenge Lady Macbeth for cause because it is clear that she could not be fair and impartial in this case,” problems may arise. The making of the challenge may diminish rapport with jurors who have befriended Lady Macbeth, or may create a bad impression on other jurors. If the court denies the challenge, the lawyer will have to exercise a peremptory challenge to remove the prospective juror because of the natural, adverse reaction the juror would have toward the lawyer. It usually is a better practice if counsel explains reasons for a challenge outside the hearing of the panel.
It may be effective, however, to move to strike a potential juror in front of the panel if a particularly prejudiced juror can be challenged in a way that provides beneficial information to the rest of the jurors. A challenge for cause stated in front of the panel must be stated in a way that does not embarrass a juror or diminish rapport with other jurors. The challenging attorney may say: “We ask the Court to excuse Lady Macbeth so that she may serve as a juror in another case, and we thank her for her time today.”
3. Numbers of Challenges
There are no specific limits to the number of challenges for cause that may be made. However, courts are cautious in granting these challenges because removing a prospective juror extends the jury selection process and delays the trial, and may encourage other jurors to try to get out of jury duty. Judges realize that most jurors have some questionable attitudes and consequently require a showing of substantial bias or prejudice which significantly affects the juror’s ability to be fair and impartial before granting a challenge for cause.
Judges recognize that some potential jurors may not want to be a juror and may admit to some bias or prejudice to avoid jury duty. Judges don’t want to encourage prospective jurors to exclude themselves and try to discourage this effort by not allowing them to be easily removed. Judges who make it problematic to exercise a cause challenge decrease the chances attorneys will make unnecessary challenges and superfluous motions.
4. Strategies for Exercising Challenges
In most jurisdictions, attorneys must bring challenges for cause before exercising peremptory challenges. The timing for cause challenges depends upon the trial procedures. In some courts, the cause challenge must be made as soon as the reason for the challenge surfaces during the questioning. In other jurisdictions, the challenges for cause cannot be made until the questioning of the challenged juror is completed. In some other courts, the challenges for cause cannot be made until all the jurors have been questioned.
An attorney must consider several factors in determining whether to exercise a challenge for cause:
- Sufficiently objective reasons must be established before a cause motion can be made. If objective reasons have not been established, the attorney should either ask further questions or pass the juror.
- A lawyer must assess whether the judge freely or grudgingly grants motions to remove for cause. The judge’s practice influences whether an advocate brings or declines to bring a cause challenge.
- The type of case may also determine whether a challenge for cause is more likely to be granted. Cause challenges are more often granted in criminal cases, especially if requested by defense counsel. A challenge is more likely to be granted in a civil case if it involves significant or controversial issues.
- If peremptory challenges may not be available to remove all unfavorable jurors, a motion for cause is more likely to be made. If there are a sufficient number of peremptory challenges, there may be no need to make a cause challenge.
- Attorneys can compare the replacement jurors from the panel with prospective jurors in the jury box to determine whether replacement jurors may be better or worse.
5. Options for the Challenging Attorney
An attorney has four options regarding the removal of a potential juror for cause. First, the lawyer can convince the juror to explicitly admit to being biased or prejudiced and unable to be fair and impartial. This option might not be available before judges who don’t want jurors to remove themselves and don’t want counsel trying to convince them they are unfit.
Second, the lawyer can hope the judge will decide to excuse the juror without a request from counsel. This may occur in situations where a juror has obvious bias or prejudices, or objective factors have been revealed that make it unlikely that the juror will be fair. This option is available before those judges who take an active role in the jury process, but may not be available before judges who take a passive role.
Third, the attorney can hope the opposing counsel will challenge a juror for cause. This likely occurs when a juror is unfavorable to all parties.
Fourth, the lawyer can challenge the juror for cause.
6. Options for the Opposing Attorney
An advocate who faces a challenge for cause brought by the opposing counsel has several options. The lawyer can oppose the challenge for cause and argue the prospective juror is qualified. The attorney can seek to ask rehabilitation questions or request that the judge ask such questions in an effort to remove the bases for the opposing party’s challenge for cause. Or the attorney may also join in the challenge for cause and ask that the juror be excused.
This latter option may be appropriate and effective in cases where it is clear to everyone that the potential juror would not be impartial. In these trials, the opposition lawyer who agrees that an obviously prejudiced juror be excused and replaced with an unbiased juror may be perceived by the judge and jurors as being fair and trustworthy. There may be a tendency to oppose the cause challenge or ask rehabilitative questions, based on the adversarial notion that an attorney should resist whatever the opposing lawyer seeks. The decision to oppose a challenge for cause should be based upon what is best for the client and the prospects of winning.
7. Rehabilitation Procedures
After an attorney has asked questions to establish grounds for a challenge for cause or after the challenge has been made, an opposing lawyer or the judge may ask questions of the prospective juror for “rehabilitation” purposes. These questions are an effort to establish that the juror can be fair and impartial.
Example:
Q: You have just told us that you have a particular bias against vloggers. In this case there will be vloggers from Samus Aran Technical School who will be called as witnesses. If the judge tells you that you must set aside your opinions and decide the case solely on the facts presented to you, will you be able to follow the instruction that the judge gives you?
A: Yes, I think so.
Q: If Judge Blaylock tells you that it’s your duty not to let your feelings or attitudes about vloggers adversely affect you, can you follow the judge’s instructions and be fair to both sides?
A: Yes, I should be able to do that.
Rehabilitation questions permit new information to be developed to rebut any facts or inferences supporting a challenge for cause or to help establish the degree of bias or prejudice the potential juror may have. The judge may also wish to rehabilitate to avoid having to call a replacement juror, which would extend the length of the jury selection process. In permitting or asking rehabilitative questions, the judge must determine if the prospective juror can be fair and if it is appropriate to require opposing counsel to exercise a peremptory challenge instead of granting a challenge for cause.
Example (by the Judge):
Q: You have told us that you had a particular attitude toward computer hackers. If I were to tell you that you must set aside your feelings and decide the case solely on the facts presented to you, and if I tell you that it is the law, I take it you will be able to set aside that attitude and decide the case solely on the evidence produced in this case?
A: Of course.
Rehabilitation may force the opponent to use a peremptory challenge if the challenge for cause is unsuccessful. If rehabilitation establishes that the juror can be fair and impartial, the challenging attorney will need to exercise a peremptory challenge to remove that juror, reducing the number of peremptory challenges available.
8. Reversing Apparent Bias or Prejudice
An attorney may not be able to bring a motion for cause or have enough peremptory challenges available to remove all questionable jurors. Some prospective jurors have an appearance of prejudice against a party that further questioning may be able to neutralize. In these situations, counsel may ask questions of a potential juror to either reduce the apparent prejudice so the juror may be kept, or to reveal a prejudice by that juror against the other side, causing opposing counsel to consider exercising a challenge. The goal of the examining lawyer opposing a challenge for cause is to establish reasons why the juror can be impartial and to obtain a commitment from the juror to be fair.
Example:
Q: Would it be challenging for you, Ms. Versace, to be fair and impartial in this case because the defendant has a wedding planning business similar to yours?
A: Well . . . I don’t think so.
Q: Would you be able to set aside your attitudes and feelings about your work and decide this case based on the evidence presented to you in this trial?
A: I would do my best to try.
Q: You would be able to determine whether the conduct of the defendant in this case was legal or illegal based upon what you hear as evidence and not based upon what may or may not happen in your Harmony Ceremonies?
A: Yes.
Q: Would you hold the defendant in this case to the standards of a reasonable employer as established by the applicable law and not to some higher standard you may have experienced in your professional life?
A: Of course.
Q: If the facts establish to your satisfaction that the defendant illegally fired the plaintiff in this case, you would be able to find in favor of the plaintiff?
A: Sure.
Q: As an executive, have you had to fire an employee if there was good cause to fire that employee?
A: Unfortunately, yes.
Q: But you yourself have never been fired?
A: Not yet (laughter). Seriously, no.
Q: You believe you can be fair and impartial in determining the credibility of the plaintiff in this case?
A: Yes.
Q: And you promise us to be fair and impartial as a juror in this case?
A: I do.
This line of questioning, if successful, can establish the importance of setting aside biases and prejudices all the jurors have in deciding a case. It may also result in jurors being reasonably accommodating during deliberations to appear to be fair and impartial.
If this line of questioning is effective, opposing counsel may even become concerned with the juror developing a bias in favor of the other party and with the possibility of the examining attorney establishing an overly effective rapport with the juror. If this approach does not work, however, the examining attorney may still be able to exercise a peremptory challenge and remove the juror.
9. Replacement Jurors
When a prospective juror has been removed for cause, a replacement juror takes that person’s place. The replacement juror may be called from the panel that is seated in the courtroom or may be called from the jury waiting room. If the replacement juror has not been in the courtroom, information about the case will need to be repeated. If the replacement jurors are in the courtroom during the interviews of the prospective jurors, attention should be paid to the replacements because it is possible that an unknown replacement juror is less favorable than the juror who was removed from the panel for cause.
B. Peremptory Challenges
Peremptory challenges permit lawyers to remove a limited number of prospective jurors from the panel without any reason or explanation to the court, with some limitations. An illegal basis, such as race, religion, or gender, cannot support a peremptory challenge. A statute or court rule determines the number of peremptory challenges available to each party. The number of available peremptory challenges varies among jurisdictions and depends upon the type of case.
In civil cases, each party may have two or more peremptory challenges. In criminal cases, each party usually has more than two peremptory challenges. The applicable court rules establish the available numbers. In federal criminal trials, if the offense is punishable by imprisonment for more than a year, the government is entitled to six peremptory challenges and the defendant is entitled to ten peremptory challenges. If the offense is punishable by imprisonment for no more than a year, each side is entitled to three peremptory challenges. See Fed. R. Crim. P. 24(b).
An attorney has two options when exercising a peremptory challenge: the attorney can use a challenge and remove a juror, or the attorney can hope opposing counsel removes the juror by using a peremptory challenge. The actual process of making peremptory challenges varies widely and it is important that counsel know which process will be used. Some common ways include:
- When questioning is completed, a chart containing the names of jurors not removed for cause is passed between the attorneys. The defense first strikes one juror, followed by the plaintiff, with remaining strikes made alternately until the appropriate number of jurors are removed.
- At the conclusion of the questioning, both sides approach the bench where plaintiff strikes the permitted number of jurors. The defense then strikes a similar number leaving a final panel.
- Following completion of questioning and motions for cause, each side independently lists the names of the jurors to be removed. The judge compares the lists and seats the required number of jurors not removed.
The limited number of peremptory challenges makes it difficult for lawyers to remove as many undesirable jurors as possible. For example, the plaintiff may want to challenge five jurors but has only four strikes. If the plaintiff thinks that one of those jurors is as undesirable for the defense as for the plaintiff, the plaintiff’s attorney can make an educated guess that the defense will strike the juror. This gives the plaintiff the chance to strike the other four jurors.
If the jurors are struck alternately, each side can watch the progress and an extremely unfavorable juror can be struck last if the other side has not removed the juror. However, if each side strikes four jurors independently and the judge seats the unchallenged jurors, neither side can rely on the other to remove the undesirable juror. If both sides strike a juror, the strikes overlap and fewer unacceptable jurors are removed.
C. Alternate Jurors
Alternate jurors are usually included in trials, and always in lengthy or complex trials. An alternate juror is selected to sit as an extra juror throughout the trial and will be called to replace a juror who becomes ill, or is unable to complete the trial, or is unable to deliberate. The selection of alternate jurors occurs at the same time and is identical to the procedure used for selecting regular jurors.
The court may permit an additional peremptory challenge when alternate jurors are selected. Typically, at least one alternate juror will be selected for a six-person jury and two to three alternates for a twelve-person jury, depending on the potential length of the trial. Alternate jurors may be excused from duty when the jury begins deliberations. Many judges in civil cases allow alternate jurors to remain on the jury and deliberate.
D. Removing Jurors
The juror challenging process presumes that the attorneys have obtained enough information about the potential jurors to make a reasonable determination about the individuals they want to remain as jurors and those they want to remove. As Section 5.8(B) explained, the number of peremptory challenges and choices are limited. A successful determination about whom to strike depends on the lawyer’s ability to obtain worthwhile information about each juror, to analyze this data, and to make predictive judgments about people.
Making an accurate final decision can be difficult. The following example demonstrates two approaches by two advocates who interpret information obtained from the prospective jurors in different ways.
Example:
Judge:
Counsel, are you prepared to exercise your first peremptory challenge?
Counsel O:
Your Honor, may co-counsel and I have a few minutes to confer?
Judge:
Yes, you may.
(Counsel O and Z conferring)
Counsel O:
I think that we should strike juror No. 5 first. He does not fit my profile.
Counsel Z:
What do you mean?
Counsel O:
We have an emotional, empathetic case and I don’t believe that the juror will react favorably to our client or our case. He is middle aged, owns his own computer business, lives in a wealthy suburb, watches media programs that are not fair and balanced, and reads unreliable blogs. My profile shows that he would be a very bad juror for our side.
Counsel Z:
Wait a moment. That juror grew up in poverty. His parents died when he was young, and he was raised by his grandparents. He made his own way and worked his way through college washing dishes in the cafeteria. He told us that he volunteers for the Scouts and is very involved in developing educational programs for underprivileged children and has donated a lot of laptops to schools. I think he’s terrific.
Counsel O:
But he is of Hittite descent, likes the color purple, and sits up too straight, and all that is a sure sign that he will not vote our way.
Counsel Z:
You’ve got to be kidding. Where in the world did you get that stuff?
Counsel O:
I was surfing the net for ancient civilization hereditary quirks.
Counsel Z:
Let’s strike juror No. 2 instead. She smiled at the opposing client. When I questioned her, she avoided eye contact and sat with her arms folded and a scowl on her face. I don’t think I related to her. She made me feel uncomfortable.
Counsel O:
I think that we should keep her. Her experience fits my profile.
Counsel Z:
I also think that we should strike juror No. 8. He just doesn’t seem to think the way anybody else thinks. I can’t understand what he is talking about, and he avidly watches professional wrestling, and doesn’t have a smart phone.
Counsel O:
But he’s perfect for our case. He is a head nodder, appears upbeat, and looks like a lot of fun. He will react with empathy, and that’s what we want.
Counsel Z:
Well, he may fit your profile. Let’s ask our clients who they prefer to decide their case.
Misconduct and Objections
State and local rules of procedure, applicable provisions of professional conduct, decorum guidelines, and common sense establish standards for proper conduct by attorneys and prospective jurors during jury selection.
A. Inadmissible Evidence
Any questions or behavior by counsel designed for the sole purpose of prejudicing the potential jury panel are improper. For example, questions that inform the jury that a defendant is wealthy or an atheist, if not relevant, are prohibited, are objectionable, and may constitute grounds for a mistrial. The general rule is that evidence may be referred to in jury selection if it bears upon an issue in the case, will be introduced at trial, and is relevant to the jury selection process. In addition, questions must be designed to provide a basis for exercising challenges for cause or peremptory challenges.
B. Improper Questions
Questions designed to meet improper objectives may not be asked during jury selection. Whether a question is legitimate or inappropriate depends upon the law of the jurisdiction and the discretion of the judge. For example, questions seeking primarily to educate or indoctrinate prospective jurors may be proper in one court but improper in another.
C. Inappropriate or Questionable Topics
Questions must be asked in good faith. Enquiries that touch on questionable areas must be phrased carefully. For example, in a personal injury case it is improper to mention insurance coverage. If a question is asked for the purpose of informing the potential jury panel that a party is insured, the question is improper and may be grounds for a new trial. However, an attorney may inquire whether any of the jurors work for an insurance company to legitimately determine their bias or prejudice. When a specific insurance company is a party to a lawsuit, jurors may be asked if they have an interest in, or a relationship with, that insurance company. In cases involving questionable or potentially prejudicial topics, the attorney may request permission to ask a specific question or may ask the judge to inquire to avoid potential errors by counsel.
D. Currying Favor
Communications with prospective jurors by counsel before and during jury selection is forbidden except during official proceedings. “Currying favor,” or trying to seek or gain favors through flattery of the jurors or exaggerated interests with their concerns or comfort, is improper. Similarly, social and business arrangements with jurors must be avoided. The judge will, or should, advise the jurors that the lawyers are prohibited from talking to the jury during the trial, and that if the attorneys appear to ignore the jurors during recesses, it’s because they are not allowed to communicate with jurors.
E. Juror Misconduct
Jurors commit misconduct if they answer jury selection questions falsely, violate rules of court, or fail to follow the directions of the judge. Some prospective jurors may wrongfully post on social media, or text, or blog during a case about their experiences, or may improperly view websites and search for information about parties or witnesses. Counsel have a duty to inform the court of jury misconduct immediately upon learning about it. Acts of jury misconduct cannot be kept secret and used later as grounds for a new trial.
F. Improper Conduct by Counsel
Attorneys must maintain a fair and impartial relationship with prospective and actual jurors during the trial. It is improper and unethical for attorneys to:
- Talk with prospective jurors individually or in a group,
- Improperly contact any friends or relatives of jurors, or
- Indirectly have a colleague contact a juror.
G. Objections
Counsel may object to the jury selection questions and conduct of opposing counsel. In determining whether to object, an attorney should consider strategic factors such as:
- The prejudicial impact of the questioning.
- The extent that opposing counsel is using jury selection for purposes other than to determine challenges for cause and peremptory challenges.
- Whether the judge has a reputation for taking control of jury selection after becoming frustrated with prolonged questioning that strays from challenges.
1. Arguing the Case, the Law, or the Facts
Questions may be asked concerning the case, the law, and the facts to obtain information to support a cause or peremptory challenge. However, in most jurisdictions, it is improper to present arguments in these areas during jury selection.
Example:
Objection. Counsel is making a final argument and not asking questions.
Response to Objection:
- Rephrase the question to seek information from the jurors rather than making a lengthy statement to them.
- Alter tone of voice making the question sound appropriate.
- Advise the judge prior to the beginning of questioning that some questions may appear to be objectionable but are not and clarify why not.
- Explain to the judge that these comments are necessary to properly exercise challenges.
2. Inappropriately Indoctrinating the Jury
In many jurisdictions, questions that attempt to “indoctrinate” the prospective jurors are improper. Appropriate questions that seek to “educate” jurors are proper, but what is acceptable varies among judges and attorneys. Section 5.7 explained the use of jury selection to provide information to jurors through proper questions.
Example:
Objection. Counsel is improperly indoctrinating the jury.
Response to Objection:
- Rephrase the question to avoid objectionable phrasing.
- Explain to the judge the need to obtain relevant answers regarding juror positions and reactions to questions.
- Clarify that a promise from jurors to vote in favor of the client is not being sought, but that the jurors are being asked whether they can keep an open mind before hearing all of the evidence.
3. Referring to Inadmissible Evidence or Topics
Inadmissible evidence and prejudicial topics may not be referred to during jury selection. Section 5.9(C) explained inappropriate areas of inquiry during jury selection.
Example:
Objection. Counsel has mentioned inadmissible evidence and improper topics during jury selection. We request the court to admonish counsel and to instruct the prospective jurors to disregard what counsel mentioned.
Response to Objection:
- Explain why the evidence is admissible or why the topic is not improper.
- Explain that while the area is a sensitive topic, the subject must be explored because of legitimate reasons.
4. Repeating Questions
Areas of jury selection already explored by the judge or the opposing lawyer may not be repeated. Counsel may, however, clarify or ask more detailed questions in areas already explored. Whether or not the questions are repetitive is a matter of judicial discretion.
Example:
Objection. Counsel is improperly repeating questions and asking about topics previously covered.
Response to Objection:
- Before jury selection, advise the court and the opposing counsel that certain areas will be explored in detail and that counsel may also wish to explore the same areas.
- Explain that additional information must be gathered from topics previously covered in order to obtain more complete responses from the jurors.
5. Asking Jurors to Prejudge the Case
Questions that ask the potential jurors to prejudge the case are improper. Questions that seek commitments regarding an issue or evidence in the case may be improper because the scope of the commitment may exceed what the jurors may properly promise.
For example, a party who has a felony conviction may be impeached with the introduction of that felony conviction. The attorney for this party may properly inform the jurors of the conviction during jury selection to obtain a commitment from them that they will base their verdict on the evidence in the case and not necessarily discredit the story of the party based solely on the felony conviction. In most jurisdictions the attorney may not ask jurors to promise that the felony conviction will not influence them because the conviction is a credibility factor the jurors may consider.
Example:
Objection. Counsel is asking the jurors to prejudge the evidence.
Response to Objection:
- Rephrase the question to avoid seeking a commitment or promise from the jurors.
- Rephrase the scope of the commitment or promise sought from the jurors.
6. Irrelevant Questions
An attorney may not ask irrelevant questions or questions designed to improperly influence the potential jurors.
Example:
Objection. Counsel is asking questions that are irrelevant regarding the qualifications of the jurors and is attempting to unfairly influence them.
Response to Objection:
- Explain to the judge how the information sought relates to a challenge for cause or peremptory challenge.
- Rephrase the question to avoid the appearance that it’s intended to improperly influence the jurors.
7. Questions That Improperly or Incorrectly Explain the Law
Questions that ask prospective jurors if they understand or will apply the law as explained by the judge are appropriate. Questions that incorrectly state the law are objectionable.
Example:
Objection. Counsel is incorrectly stating the law.
Response to Objection:
- Explain why the attorney needs the response of the jurors to the stated legal issues.
- Rephrase the question by advising the jurors that the judge will explain the law.
- Restate the law correctly.
8. Questions That Are Unfair, Embarrassing, or Pry Improperly into the Personal and Private Life of a Juror
Questions that seek legitimate information about potential jurors are appropriate. Overly sensitive, embarrassing, or unfair questions that seek inappropriate personal or private information from jurors are improper.
Example:
Objection. Counsel is asking unfair and embarrassing questions.
Response to Objection:
- Apologize to the jurors and to the court.
- Stop being insensitive or unfair.
H. Unacceptable Removal Reasons
Discriminatory reasons that are used to support a peremptory challenge or a motion to remove for cause may be illegal. A prospective juror cannot be removed for racial, religious or gender reasons. Some jurisdictions prohibit removal for other improper grounds. The attorney must know the reasons a juror cannot be removed and provide a proper basis for removal. Counsel may object to a removal based on improper reasons. It if appears to the judge illegitimate factors are being used, the advocate will need to explain why legitimate grounds support removal.
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