Jury selection is the crucial foundation for a successful verdict. We have the opportunity to assist in shaping the factfinders. We must grasp this opportunity by understanding and utilizing the persuasive principles that apply at every stage of the trial.
We learn how to do voir dire by reading, watching, and doing. Books, articles, lectures, and even television programs assist us in adapting principles to our jury selection. In this article we will discuss a television program featuring fictional jury consultants and how they use jury selection techniques. We will also discuss the methods that I personally employ.1
In the 2016-2017 television season, CBS introduced the program Bull, loosely based upon the early jury consultant work of Phil McGraw, PhD, known as Dr. Phil on TV. The series’ main character, Dr. Jason Bull, heads Trial Analysis Corporation (TAC). It utilizes high-tech data and psychology to create and shape narratives (case theories) that assist in choosing jurors and uses a mirror (shadow) jury during trial to modify the narrative throughout the trial process.
Of course, all you need to do to use Dr. Bull’s system is have several million dollars to develop the 400+ factor analysis of each potential juror, to assemble a mirror jury to watch the trial and comment on the effectiveness of the narrative as it actually develops, and the willingness to have staff hack others’ computers, trespass or burglarize others’ businesses and residences, and steal others’ property. Dr. Bull’s goal is to win at any cost. He claims to use psychology, neurolinguistics, and demographics to this end. Not all episodes start with or even mention jury selection. Some are purely jury consultation in action in the ongoing trial.
Jury consultation has spawned a growing industry since it was first used in the 1970s. Many companies now exist that use “scientific jury selection.” Some companies offer much of what Dr. Bull advocates.2 Internet sites claim to have a “unique and proven ability to help you craft a compelling story to successfully persuade a jury.”3 They claim to be experts in case themes and the analysis of mock juries.4 They have developed experience and use statistical analysis to understand jurors5 including which ones to keep and which ones to strike.6 They also do witness preparation.7
Let’s face facts. We do not have several million dollars to hire anything like Dr. Bull’s company or even the ability to hire one jury consultant. We are on our own to determine the best narrative and the best jurors.
Real jury selection preparation begins with developing theories, themes, and trilogies.8
The legal theory, determined by the plaintiff or prosecution, is the cause of action and the burden and standard of proof. It also includes counterclaims and crossclaims.9
The case theory is the story that occurred outside the courtroom from our client’s point of view. The case theory will later be expanded to become our opening statement. Both the plaintiff and the defense will have their own case theories.
The legal theme is determined by the defendant and is the defense, elemental or affirmative. Affirmative defenses will have their own elements and burden and standard of proof. The legal theme provides the focus for the trial.
The case theme is a few words, phrase, or a sentence that comments on the legal theme from our client’s perspective. Both parties will have at least one case theme. Perhaps the best known case theme is “if it [the glove] doesn’t fit you must acquit.” Working back from the case theme to the legal theme, the legal theme in the O.J. Simpson murder trial was identity. The prosecution’s case theme must then have addressed identity.
A trilogy consists of the key concepts in the case.10 While originally created as a trial tactic requiring three concepts, the trilogy has evolved into a listing of key concepts as few as two and as many as seven.11 Jury research has determined that, if there are more than seven key concepts, the jurors will be unable to remember all of them.
At the heart of jury selection are only three broad areas of inquiry: case-specific issues, law issues, and demographics. Attention must be paid to all three. Our theories, themes, and trilogies will be useful in determining what case-specific and law issues to address.
There are only two functions for questions that can be asked during jury selection – searching questions and education questions. Searching questions seek information from the jurors, primarily life experiences and attitudes. Education questions seek to provide information to the jurors. Case-specific issues usually utilize searching question. Law issues usually utilize education questions. Both may use either. Demographics always use searching questions.
Make a list for each category of inquiry. Then decide the importance of each issue. Although primacy, what we believe is what we hear first, is important in jury selection, we can rarely use recency, what we believe is what we hear last. You never know how long a particular issue will take and you cannot chance that the judge will make you stop before you get to the last issue. The topics should funnel from what is most important to what is least important. Begin with your most important issue, then second most important, and so on. That way you have time to discuss your most important issues.
So what can we learn from Dr. Bull?
Life Experiences and Word Choice
Episode 1 – The Necklace.12 Dr. Bull’s client is charged with murder and the defense is alibi. Dr. Bull tells us that jury trials “never start at zero.” Jurors have life experiences and attitudes that largely determine how they perceive the facts and decide the issues. Dr. Bull opines that it is essential that we understand the likes, keywords, and avoidances that will influence each juror. Dr. Bull utilizes moot jury selection to make sure that “my client is vindicated” and that he receives a “fair trial.”
Certainly, as Dr. Bull explains, we must determine the likes and avoidances of the potential jurors. But there is much more than that. We need to explore their life experiences as they relate to issues in our specific case. The best way to explore life experiences is through the use of analogies. Consider your life experiences and the life experiences of those close to you in creating analogies that will bring alive the jurors’ experiences.
Suppose that an issue in your case is that the victim of an automobile accident left out key facts when he filled out the accident report. Consider when you or someone close to you have had to fill out reports. Were key facts left out? Consider the conditions under which the report was made. Create a story, an analogy, that applies.13
An analogy may be an objective story. More importantly, if the judge and jurisdiction permit, is to put the “you” in your analogies. For example: “I was at a family gathering. My grandfather and my wife’s brother got into an argument. Ultimately my brother-in-law pushed my grandfather down three steps causing a broken arm. The police came. I was given a sheet of paper and asked to make a statement. I was very upset by the argument and injury. I only wrote that my brother-in-law pushed my grandfather and he broke his arm. I only wrote one sentence. I did not write anything about the long history of animosity and the argument that immediately preceded the broken arm. I certainly did not write everything I could have. Have you or anyone close to you ever written a report and left out key facts?”
First, such an example focuses the juror’s attention on a specific situation for the juror to consider. Our analogy should come as close to the situation in trial as possible without crossing the line of asking the jurors to prejudge your case. Second, the analogy puts us in a different light than just being attorneys. The above analogy tells the jurors that you are married, that you have a brother-in-law, that you have a grandfather, and that there is animosity within the family. By putting the “you” in the analogy, you inform jurors that you are a human being with a life beyond your profession as an attorney. Those little facts about ourselves permit the jurors to identify with you, showing that you and the jurors have things in common. Also, the principle of reciprocity holds that, when you reveal something personal about yourself, jurors are more likely to respond with personal information about themselves.
Dr. Bull mentions that the lawyers need to know the keywords. More importantly, crucial to a successful outcome in a case is the key principle that the words that are used in the courtroom are the words that the jurors will use during deliberations.14
“Calling names” is a subset of word choice. Determine the most favorable label to put on each party and every witness. For example, in a criminal case if identification is not an issue, the prosecutor should refer to and have the witnesses refer to the accused as “the defendant.” As much as possible, when there is a victim, refer to her as “the victim.” When the jurors go back to deliberate, they will talk about the defendant and the victim – a step toward a conviction.
Why Do We Catch a Cold?
This is the key question that Dr. Bull wants the attorney to ask the jurors. The reason for this question is not explained in the series. What Dr. Bull does talk about is how individual jurors perceive what controls their lives. The locus of control is important in determining the jurors that we want in a case. If the juror takes responsibility for having caught a cold, it indicates that the locus of control is with the individual. If the juror places blame on an outside force, the locus of control is with someone/something else.
I use a similar analogy in my voir dire. Imagine you are driving in a rainstorm/snowstorm (depending on time of year) where it is so bad that you cannot see. You keep slowing down, but you still cannot see. All of a sudden you smash into a car in front of you. Who/what is responsible for the accident. If the juror indicates that it was his fault, it indicates that he takes personal responsibility. If the juror indicates that it is the fault of the weather, the juror places responsibility on outside forces. As a prosecutor, I want to keep jurors who take personal responsibility – and assign personal responsibility for the acts of the defendant. It is not the drugs, it is not the alcohol, and it is not his mental condition; it is the defendant’s acts alone and, for these acts, he must take personal responsibility.
Dr. Bull emphasizes the importance of dress and appearance in persuasion. TAC employs a fashionista, Chunk, to dress not only the client, but also the attorney. Dr. Bull decides the message he wants to convey by the dress and appearance, assigning the task of following through to Chunk.
Dress and appearance are important. When I was a public defender, I was assigned a case of kidnap and sexual assault of an adult woman. The defendant told me that the woman was a prostitute and that she only made an outcry after her boyfriend caught them together. The story seemed highly improbable because the woman had been picked up on an interstate highway where her car had broken down. She said that the defendant had offered her a ride home. Once they arrived at her home, she began to get out of the car when the defendant purportedly pulled her back into the car and drove to an open field where she was raped. Where she began to get out of the car one of her shoes had slipped off onto the street. The case did not look promising for the defendant. However, when she walked into the courtroom to testify, she was dressed like a prostitute. That was all the jurors needed to reach a 10-minute “not guilty” verdict.
The best informed make the best decisions. Dr. Bull has several assistants and a multitude of computers always with lights flashing, even in the middle of the night. He has a computer hacker and a couple of investigators. One of the tasks of the hacker is to gather as much information as possible on potential jurors. The investigators are also utilized to gather information. TAC places all the information into a computer that analyzes 400 factors for each juror.
Indeed, social media may be an important source of information about jurors. But who has the time, money, or staff to search social media of all potential jurors? Some judges formally prohibit the use of social media to investigate jurors. In some jurisdictions, the courts may require that any information gathered by social media be shared with opposing counsel. Some jurisdictions impose an affirmative duty to check and monitor potential jurors and jurors’ social media. In some jurisdictions, we may receive the juror list well in advance of trial. In other jurisdictions, we may not receive the juror list until the day trial begins.
Gender and Racial Bias
Episode 2, “The Woman in 8D,”15 and Episode 19, “Bring It On.”16 In Episode 2, turbulence is responsible for an airplane crash. The pilot is a woman. Although highly trained and experienced, the issue of gender bias is the key in jury selection during this episode. Here Dr. Bull attempts to “adjust assumptions” of the jurors on gender bias by having the attorney ask questions about women automobile drivers. The key is discovering “unaware assumptions” that jurors have.
In Episode 19, a rich, powerful, controlling minority attorney is charged in the murder of his girlfriend. The issue of race of a defendant is introduced in this episode. The defendant is seen giving press conferences during trial to help his defense. He is also a celebrity. Ultimately, through plot twists and turns, it develops that the defendant did not kill his girlfriend.
We all utilize stereotypes, heuristics, and attitudes to make quick decisions during our journey through life. We are aware of some of these. We are not consciously aware of others. Implicit bias occurs at a level below conscious awareness and without intentional control. Implicit bias can arise from and be reinforced by many factors including social learning experience, personal experience, common cultural understanding, emotional learning, and fear conditioning.17 The key to defeating implicit bias is awareness. Increasing discussion about or contact with implicit bias can, at least in the short term, reduce the impact. Questions to jurors that bring to the forefront implicit biases may help to reduce their impact. Also, broaching the subjects may make some jurors more aware so that the issue is discussed during jury deliberations.
In the episode involving the woman pilot, the mere bringing forth of the issue of implicit bias against women will assist in reducing the bias’s impact.
On March 10, 2017, the Eastern District of Washington adopted criminal jury instructions that discuss unconscious bias.18 Part one of the instructions reads:
Unconscious biases are stereotypes, attitudes, or preferences that people may consciously reject but may be expressed without conscious awareness, control, or intention. Like conscious bias, unconscious bias, too, can affect how we evaluate information and make decisions.
The Eastern District of Washington also permits the judge and/or the attorneys to ask questions concerning unconscious or implicit bias. One technique is to ask hypothetical questions concerning situations that present the potential jurors with situations where there is a minority involved and another where a non-minority is involved. This can work both with race and gender. Suppose that there is a fight in a bar between a man and a woman. A jury question might then be: “what is your initial reaction as to who was the aggressor?”
Dr. Bull opines that it is essential in jury selection to determine who the leader(s) will be, who will follow, and who will stand by themselves. A verdict is the result of the interaction among jurors. Lisa Blue in her 2016 AAJ Paper19 suggests that there are actually five categories of jurors: leaders, followers, fillers, negotiators, and hold outs. The most powerful member of the jury is the leader. When I was a line deputy public defender or prosecutor trying over 12 felonies a year, I could easily determine who the foreperson would be. The juror’s participation in voir dire both by talkativeness and attention to other jurors, as well as the juror’s occupation and participation in other organizations, will give you a very good idea on who the foreperson will be. Followers either want to get the job finished quickly or are simply not assertive or aggressive. Fillers are more passive than followers and will follow the majority. Negotiators are important to keep peace during deliberations. They keep the peace by analyzing and verbalizing the issues. Holdouts are also known as rebels with a cause: jurors who will never change their position.
It is essential to your case that you pick a juror who has demonstrated those leadership qualities to make a decision in your favor. It is also important to have at least one good negotiator. It is okay to have followers and fillers who may appear to be “bad jurors,” so long as you have the right leader and negotiator.
A factor in determining whether a juror will become a leader, a follow, or a loner can in large part be determined by the occupation he has or has had. Occupation is a key factor in determining our attitudes and styles. What we do during the workweek says a lot about your attitudes and beliefs, and whether we are a leader or follower.
Dress – What Jurors Actually Do – Demeanor
Episode 3, “Unambiguous.” In this episode Dr. Bull represents a woman who is charged with the murder of the man who sexually assaulted her. In this episode Dr. Bull stresses the importance of what the parties, the attorneys, and the jurors wear. Dr. Bull opines that dress is as important as what people actually say.
Certainly how we dress is important to establishing rapport with jurors. But I would disagree that it is as important as the content of communication. You can control what you wear and largely control what your client and your witnesses wear. As a general rule of thumb, I dress to the level of the community in which I am trying the case, looking to how the community dresses when they go to a formal occasion such as a wedding, a religious service, or a graduation.
The second issue in the episode is what jurors actually do during trial. Dr. Bull opines that jurors are told not to pay attention to the media, but they in fact do. In your case the media may play a major factor in your case, or be of little or no consequence.
Dr. Bull opines that the key where the media is a big factor is to influence the media toward your position. Everyone hopes that the jurors follow the instructions of the court – but can we expect that the jurors do? We do not know what the jurors do once they leave the courtroom. In some cases a juror might self-report or jurors may discuss media together. However, in my experience, jurors rarely report on themselves or other jurors concerning media exposure and discussions among jurors before deliberations.
The third issue in the episode is having the witness take control of the examination. In this episode, the woman is prone to panic attacks. Dr. Bull advises her on how she can take control what to do when a panic attack occurs. One of the techniques he uses is for the person having the attack to repeat random numbers. When the focus is on the random numbers, the victim/witness pays less attention to the panic and is able to relax.
It is important in witness preparation and in trial to teach the witness how to get and maintain control. One suggestion is to demonstrate the technique of “listen-pause-answer-stop.”20 The witness can use pauses, request that a question be rephrased, ask for water, or even request a break to maintain control in the courtroom. Inform the witness that it is all right to say that he does not remember, does not know, or that he is confused.
Trust the Attorney
Episode 4 “Callisto.” A juror’s decision may be based, partially at least, on which attorney the juror finds more trustworthy. An attorney may have the advantage of the “halo effect.” Outside knowledge of an attorney or a firm may impact the jurors’ ability to trust that attorney. The notoriety and history of the attorney, if any, will have impact on the jurors’ trust. If neither side has the outside influence, a lawyer needs to develop trust. Trust can be developed based upon the attorney asking the questions, the style of questions, and the manner of questioning.21 Trusting you is a step in having the jurors decide in your favor.
Episode 5 “Just Tell The Truth.”22 A woman gives a false confession to murder after 11 hours of interrogation. Dr. Bull’s mission is to have the jurors understand being in a situation where they are helpless and coerced. The scenario from the police interrogation was mental exhaustion, a promise of escape by the police (“If you confess, then . . . .”), an offer of a reward, and forcing language. He creates a situation in an elevator with several of the jurors and himself. The elevator does an emergency stop orchestrated by Dr. Bull’s employee. It looks like they will be stuck in that situation for an extended period of time. In fact, the person who responds to the call from the elevator, actually one of Dr. Bull’s employees, tells that it will be several hours before they are rescued. One of the jurors then tells the employee that someone is having a medical emergency – a heart attack. This of course is a lie. After the lie, the elevator operates once more. This taught the jurors about false confessions.
We cannot ethically reconstruct the elevator scenario. We are left with creating analogies to make the jurors consider their real-life undesirable or coerced situations. We have to get as close as possible to the situation in the case while asking questions of the jurors. We can ask jurors if they have ever been in a situation when they took blame for something they didn’t do. We can ask the jurors to imagine the reasons someone might tell a false story. We can also use a story from our life experiences or from the experiences of those who are close to us as a springboard to asking questions to the jurors.
When You Are a Hammer, Everything Looks Like a Nail
Episode 7, “Never Saw the Sign.”23 The defendant is charged with criminal vehicular manslaughter. The person killed was his passenger, his wife. Dr. Bull states that “jury selection is never perfect.” Without discussing case themes and trilogies, he does discuss the “magic words” that support the theory. These magic words should be introduced during jury selection and are re-emphasized in opening, examinations, and closing.
The key to the case was a sign warning of road conditions before the accident. The defendant does not remember seeing the road sign. A hacker had changed the road sign to say something about books, removing the traffic warning. The theme is that there was no need to read or remember a sign that talked about books. If the sign had been about road conditions, the defendant would have remembered.
In our cases we may have an issue of memory. We need to talk to the jurors about how memory works – or doesn’t work. We need to rely on analogies.
Consider also the life experiences that the jurors may have had that developed attitudes and emotions that may transfer to your case. This is what “when you are a hammer everything looks like a nail” means. Keep the focus on how the jurors, through the lens of their life experiences, will perceive the people and occurrences that make up your case.
Love-Hate Dynamic – Celebrities
Episode 8, “Too Perfect.”24 What do you do when your client is a celebrity? Dr. Bull talks about the “love-hate” dynamic where jurors may have admiration for a celebrity, but have little emotion or even hate for the person as well. The theme of the episode seems to be that, while we love celebrities, we also hate them because we believe that they get away with behaviors because they are celebrities.
Specific Preconceived Beliefs
Episode 9, “Light My Fire.”25 A restaurant explodes, killing a man. A former employee is arrested and charged with arson and murder. The location is a small town. The family of the defendant is detested in the town because of things that the defendant’s mother and brother did several years before. The defendant is cast in the light of his family’s reputation as a no-good bum who would participate in criminal activities. Dr. Bull has the defendant testify and, by adroit questioning of his attorney, humanizes the defendant.
Jurors may have preconceived impressions concerning a party or a place. The best way to deal with these concerns in jury selection is by way of analogy. Get the jurors to talk. One of the methods of getting jurors to talk is by telling them that there are no right or wrong answers.26 Tell the jurors that your questions will only be about topics relevant to the case and only concern the issues that they will have to determine. In my voir dire at the end of the introduction, I enumerate the topics for the jurors. “There are three topics I hope to discuss with you today. First . . . . Second . . . . Lastly . . . .” Putting the jurors at ease by demonstrating your promise that there are no right or wrong answers, that there will be no criticism, and by letting them know in advance the topics to be addressed will encourage them to answer your questions.
Episode 11, “Teacher’s Pet.” A high school football player has a relationship with his teacher. The teacher is being sued by the child’s parents for inflicting harm on a minor. Dr. Bull has the attorney ask the following analogy concerning personal space: “You are at the movies alone, the theater has few people, and, except for you, there is no one else in your row, someone comes in and sits right next to you. How do you feel?”
The principle is that people decide cases based upon social norms and life experiences. We decide cases not only based upon our life experiences but also the experiences that people close to us have shared with us.
Is a Hot Dog a Sandwich?
Episode 12, “Stockholm Syndrome.”27 Dr. Bull introduces this episode by opining: “We define people on the questions we ask and the answers we choose to believe.” The Stockholm Syndrome occurs when the hostages in a situation develop an attachment to the captors. In this episode, a woman, whose husband has been sentenced to 15 years after pleading guilty to a crime he did not commit, places a bomb in the basement where Dr. Bull is conducting a mock jury. The bomb goes off trapping Dr. Bull, his mock jurors, and the woman. Here, the captor is the woman and the hostages, Dr. Bull and the mock jurors.
Dr. Bull points out that people experience events differently – and, because of this, tell a different story of the same event. Dr. Bull holds a mock jury despite the fact that they are trapped. By asking “which blast was the loudest, the first or the second,” he introduces the topic of memory. Some jurors say the first. Other jurors say the second. The truth is that there was only one blast. Dr. Bull talks about how memories are altered by the questions that are being asked.
The question “is a hotdog a sandwich” seems nonsensical.28 The attorney does not tell the jurors why he is asking the question and there is never an explanation during the episode, but Dr. Bull insists that it be asked. One explanation may be that the question actually asks about defining terms. Attorneys, as word surgeons not word butchers, should use words very carefully. A “sandwich” is defined by certain attributes. Having defined the class, it must be determined whether a “hotdog” has the attributes required for the class. Is it murder or is it an accident? Was it fraud or was it a mistake? We need to think about the words that we use. Word choice, including “calling names,” is important in persuasion. It is important to choose the right words.
Spy Versus Whistleblower
Episode 14, “It’s Classified.”29 Is the woman officer who gives up classified information a spy or is she a whistleblower? She is charged with a violation of the Espionage Act. She leaked documents to a newspaper concerning the bombing of a hospital. Unfortunately, the document revealed the location of an Army Ranger unit which was ultimately attacked, leading to the death of three Rangers.
The episode discusses topics we have reviewed: words matter, body language matters, and eye contact is important. When we choose the facts to discuss we change the focus of the trial. Jurors make decisions based upon their life experiences. Facts exist. How these facts are told in a story persuades.
With the notion that turnabout is fair play, the Army hacks into Dr. Bull’s computer. The hack gives the wrong juror profiles to Dr. Bull. As a result, the wrong potential jurors remain on the jury.
Risk-Takers Versus Controllers
Episode 16, “Freefall.”30 The governor dies in a jump from an airplane. Dr. Bull represents the company that packed the parachute and flew the plane. The company is sued for wrongful death. A juror profile is created where the issues of control, risk, and fear are considered. Dr. Bull does not want jurors who do not take risks, whose favorite color is not red, who do not buy extra insurance on a rental car, and who desire a raise but do not get one.
Creating juror profiles is a good practice. They make us think about those attributes and attitudes that form the best and worst jurors. They make us think about the issues in the case. They point the way to discovering the analogies we need to use in voir dire.
The episode also points out that jurors know if the attorney is not committed to the case. We do not always have the luxury of representing a person or agency in whom we believe. However, no matter the party we represent, when we are in front of the jury, we must act “as if.” Even if you are not committed, act committed.
The Program as a Jury Selection Issue
The television program may create a jury selection issue in itself. By way of analogy, the existence of a “CSI effect” is controversial.31 CSI: Crime Scene Investigation is a CBS-TV crime drama series. Just as controversial is what attorneys can do to remediate the effect if it exists. Just as there may be a “CSI effect” for scientific evidence, there may well be a “Bull effect.” Uninformed jurors will believe that Bull is reality. The larger our office, the more likely jurors and judges will believe we have the resources to do the things that Dr. Bull does. We know we don’t. Just as attorneys must prepare for a possible CSI effect on jurors, we will now need to acknowledge a possible “Bull effect” and develop strategies to combat the effect.
The believers in the CSI effect and scientific evidence point to the heightened and unrealistic jury expectations. We incorporate into our experiences expectations and attitudes about what should be presented in an actual jury trial by watching crime television programs. However, not every case has scientific evidence. Not every case needs scientific evidence. But jurors want to hear scientific evidence. The jurors also expect that the science be flawless. If only it were! Things happen: no DNA was found, a combination of contributors was discovered, something happens in the chain of evidence. Further, DNA evidence may mean nothing. For example, in a self-defense murder case the DNA will be meaningless. Further, jurors may believe that they understand the science behind a certain technology when the technology has been either exaggerated or entirely fictional.
We cannot afford to ignore the potential of a CSI effect. If we ignore it and it is true, we have blundered in jury selection when our cases may have involved scientific evidence. If we embrace it and discuss it, we have not lost even if it is not true. Care needs to be taken in the formulation of questions. Maryland courts have frowned on CSI effect questions and instructions.32 In Robinson v. State,33 the court held that the instruction must not be given without empirical proof that the CSI effect exists.
What effect, if any, will a Bull effect have on jurors? It will key in the stealth jurors on how to stay on a jury. It will suggest to the jurors that attorneys use all manner of criminal behavior to obtain information about them including, but not limited to, hacking, stalking, stealing, and burglarizing. It suggests to jurors that jury selection is a game played by the attorneys who will do whatever it takes to win at any cost.
Other Jury Selection Principles Not in Bull That We Need to Know
This season of Bull has left out some important jury selection principles. The author of Blue’s Guide to Jury Selection, Lisa Blue, has a golden rule for jury selection: people relate to and identify with people with similar backgrounds, beliefs, and life experiences.34 When considering and creating questions for voir dire, we must consider our client, our client’s position, our client’s circumstances in life, and the key witnesses.35
The more we are exposed to weaknesses or faults, the less important they seem. Embrace the weaknesses and over-expose them. For example, in the defense of a murder case where there are particularly gruesome photographs, instead of running away from the photographs, show them over and over again to take the sting out of them.
Question, but listen. Jurors should be doing most of the talking during voir dire. Ask open ended questions to encourage responses. Ask how the juror “feels” or “thinks” about an issue. Question, but also observe. It is not only the content of the questions, but also your tone and body language that communicates.
Do not ask questions that are not relevant to the issues in your case.
How Do I Do My Voir Dire?
There are three phases to voir dire: an introduction, the questioning, and the conclusion. In the introduction after greeting the jurors, the attorney should:
- Introduce other individuals at the table;
- Indicate that you requested, wanted, and welcome this trial;
- Inform the jurors that you will assist them in finding the facts and the truth, so that justice can be done;
- Tell the jurors how important they are individually in that search for truth and justice;
- Point out the purpose of jury selection;
- With the judge’s permission, explain that sensitive questioning can be done in chambers;
- Emphasize that there will be no criticism of their answers; and
- Stress that there are no right or wrong answers, only truthful answers.
In Colorado the Criminal Rule permits, in the discretion of the judge, the attorney to do a mini-opening to place the questioning in context. If the judge does not permit this, I will place some of the facts in the preface to any questioning topic. At the end of the introduction, I enumerate my topics using a roadmap.
In the introduction, I do not necessarily go in numerical order. The greeting is first. The enumeration of topics is last. Some attorneys begin with the mini-opening,36 Primacy suggests that placing the mini-opening first may be the optimal strategy. Placing the mini-opening first previews the case and issues for the jury and gives context to your questions.
Gathering information through questioning is the function of voir dire. Using analogies does several things: it places the issues in the case in a more precise setting; it causes the jurors to think of their own life experiences in similar settings; it influences jurors who have not had those experiences by exposing them to the issue; and it permits the attorney to be seen as a human being. Analogies are essential to understanding for jurors. Always thank jurors for their answers, especially if the answer is bad for you. Wave the flag in response to bad answers: “This is America and you have a right to have an opinion. Even if the judge or a lawyer disagrees with you, no one in this courtroom will criticize you for your opinion.” Use focus-out and focus-in techniques to keep all the jurors involved in the process. Ask a general question to all the jurors and then focus on individual jurors. One technique you can use to get the jurors to respond to a question is to raise your hand yourself as you ask the question. This encourages jurors to respond. Be inclusive: do not forget those who do not raise their hands. Use inclusive language. Also talk about “we” and “us” instead of “me” and “my,” except when using analogies. Also ask inclusive questions: “Have you or anyone close to you . . . .”
You should use open-ended questions to receive the best responses. You can also use scaled questions, on a scale of 1 to 5 or 1 to 10, or “some people believe” questions. Follow up on answers.
Conclusions are very important. Watch your time. There are four concluding questions37 that you should always ask, even though you may rarely receive answers.
- Were you not asked a question that you would like to answer or would answer differently?
- Have things come to mind when a question was asked, but you did not get the chance to answer?
- Considering the issues that you will be called upon to decide, is there anything you want to say?
- Is there anything about you, your background, your experiences, your attitudes that has not been revealed that you believe, in fairness, should be revealed to the judge and the attorneys?
This works. As one example, I was trying a felony when I was a chief deputy district attorney. After asking all four of the questions, one of the jurors raised his hand and asked to speak in chambers. In chambers, the judge asked him what he had to say. The juror said: “I hate Edwards.” A little shocked by that answer I asked why. The juror indicated that I had prosecuted his girlfriend and that she was convicted. If I had not received that information, I would have kept him on the jury. What chaos would have arisen if he had been permitted to deliberate?
Finally, when I conclude the voir dire, I thank the jurors for their attention and honesty. Be sure to be sincere whenever you offer thanks. I then pass the jury for cause, giving up my challenges for cause, or ask to approach the bench to make my challenges.
The most common mistakes in jury selection are:
- Not being nice. From the moment you leave the house in the morning until the verdict, be nice to everyone. Potential jurors are watching. They know when you have been naughty and they know when you have been nice.
- Failing to prepare and organize. Know the courtroom procedure. Know the law.
- Not letting the jurors know what you are going to ask them and why that topic is pertinent to this case.
- Taking an adversarial role. Unlike any other part of trial, you are not an adversary to the jurors. You need the information. Bad answers are especially good for the information that they provide.
- Talking down to jurors and not understanding that jurors perceive the case through their life experience, attitudes, beliefs, biases.
- Not revealing who you are as an individual in your analogies.
- Not giving jurors sufficient time to answer your questions.
- Not calling upon jurors who wish to respond. Even if you are not going to let that juror answer a question, indicate that you are aware that the juror wanted to answer. “I also thank jurors (name or number) for offering to answer.” If you do not recognize the individual juror, that juror may no longer answer at all and other jurors will be discouraged from answering.
- Failing to protect your record. Even if a juror interrupts someone else’s answer, state the juror’s name or number so the response is attributed to a particular juror.
- And the biggest mistake: failing to listen. Listen to what the juror has to say. You can echo the response if it helps you. You can follow up on the answer to gain further information.
We must continue to adapt and progress how we do our voir dire. For example, I was just reading a book on rhetoric, Thank You For Arguing,38 when I came across a couple of questions that might be useful in voir dire. The author makes the point that people feel best when they live up to their values. To discover those values ask: “who are you first?” and “what one thing would you describe yourself as?”
Bull can remind us of the many principles we need to utilize in jury selection. While we cannot have and do not have access to all the bells and whistles of the television drama, we can still utilize many of the underlying principles. This article has only touched the surface of developing theories, themes, and trilogies; searching for the jurors’ life experiences; utilizing the principles behind word choice; and thinking about issues like implicit bias and trust. Learning about jury selection to effectively accomplish it is a lifetime pursuit.
- There are so many sources about jury selection that I have read over the last 40 years that it is hard to say where I learned various principles. My education started with Cathy Bennett’s work on jury selection that began in 1972. Although she died in 1992, her work continues with Cathy E. Bennett & Associates, http://www.cebjury.com/about. The work of Juryworks, originally started in Chicago, has assisted in determining what jury demographics have statistical significance. I have also been influenced by Gerry Spence and his jury selection techniques and, more recently, by Lisa Blue’s articles. There are also many law review articles, too numerous to mention, which have influenced my trial techniques.
- See, e.g., the websites of R& D Strategic Solutions at http://www.rd-ss.com/rd_pre-trial; Jury Behavior Research at http://www.juryadvisor.com/services.php; and Doar at https://www.doar.com/about-us/.
- In discussing jury selection, I will use the term “juror” or “jurors” to also refer to a member or members of the venire.
- Theories and themes have been taught since I was in law school 40 years ago. What is meant by theories and themes changes over time and between organizations. I have taught trial practice, evidence, criminal law, and criminal procedure for over 30 years at the University of Denver’s Sturm College of Law. Early on in teaching trial practice, I found that the students were not paying much attention to the law. That is when I began to divide theories and themes into legal theory, legal theme to emphasis the law and case theory, and case theme to emphasis the persuasive story and its interconnection with the law.
- Fed. R. Civ. P. 13.
- See, e.g., Joseph M. Griffin Jr., The Importance of Case Theory in Criminal Trial Strategies, in Andrew R. Miller et al., Trial Techniques for Criminal Cases (2010), 75-86; Steve Baxley, Speaking for the Accused: Creating Stories and Themes, 31 Champion 26 (2007), https://web.law.asu.edu/Portals/35/Files/Moot%20Court%20Documents/Competition%20Materials/Jenckes%20-%20Speaking%20for%20the%20Accused.pdf; Stephen Lindsay, Storytelling: Why We Do It & How to Do It Better, 23 Champion 30 (1999); Andrew Dlugan, Trilogies in Speech, Six Minutes, http://sixminutes.dlugan.com/rule-of-three-speeches-public-speaking/; Lisa B, Marshall, How to Communicate Better Using the Rule of Three, Quick and Dirty Tricks, http://www.quickanddirtytips.com/business-career/public-speaking/how-to-communicate-better-using-the-rule-of-three; Presentation Skills 3. The Rule of Three (Apr. 20, 2009), https://www.presentationmagazine.com/presentation-skills-3-the-rule-of-three-7283.htm.
- See, e.g., George A. Miller, The Magical Number Seven, Plus or Minus Two, 62 Psych.Rev. 63, 81-97 (1955) , http://psychclassics.yorku.ca/Miller/, frequently referred to as “Miller’s Law”; but see Nelson Cowan, The Magical Number 4 in Short Term Memory, 24 Behav.& Brain Sci., 87-114 (2001) https://www.cambridge.org/core/journals/behavioral-and-brain-sciences/article/magical-number-4-in-shortterm-memory-a-reconsideration-of-mental-storage-capacity/44023F1147D4A1D44BDC0AD226838496.
- Bull: The Necklace (CBS television broadcast Sept. 20, 2016).
- There are certain jurisdictions and certain judges who will not permit analogies.
- See, e.g., Amy Singer, Using Psychology to Win in Court, Trial Consultants, Inc., http://www.trialconsultants.com/Library/UsingPsychologytoWin.html; Frank I. Luntz, Words That Work (2008); Stephen E. Smith, A Rhetorical Exercise: Persuasive Word Choice, 49 U.S.F.L. Rev. 37-39 (2015), http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1935&context=facpubs; Joe Lester, Word Choice and Persuasion, Advocacy Teaching Blog, http://advocacyteaching.blogspot.com/2010/09/word-choice-and-persuasion.html; Robert L. McGahey, Jr., More on Language, Word Choice, and Persuasion, Advocacy Teaching Blog, http://advocacyteaching.blogspot.com/2010/09/more-on-language-and-word-choice.html; Jay Heinrichs, Thank You For Arguing: What Aristotle, Lincoln, and Homer Simpson Can Teach Use About the Art of Persuasion (2013).
- Bull: The Woman in 8D (CBS television broadcast Sept. 27, 2016).
- Bull: Bring It On (CBS television broadcast April 18, 2019).
- The Art of Voir Dire in several publications including 2016 Annual AAJ-Papers-7 and ATLA January, 2005 Conference, available on Westlaw, Blue attributes the five categories to NJP Litigation Consulting, Jurywork: Systematic Techniques (2d ed.2016-2017).
- Variations of this technique is suggested in many sources. For example, Rutter Group Practice Guide: Federal Civil Trials and Evidence June 2017 Update, Chapter 1 E. 10. “Preparing Witnesses to Testify” suggests in different paragraphs that the witness listen, wait/think/pause, answer, stop.
- Frank Andreano, Voir Dire: New Research Challenges Old Assumptions, 95 Ill. B.J. 474 (2007).
- Bull: Just Tell The Truth (CBS television broadcast Oct. 25, 2016).
- Bull: Never Saw the Sign (CBS television broadcast Nov. 22, 2016).
- Bull: Too Perfect (CBS television broadcast on Dec. 6, 2016).
- Bull: Light My Fire (CBS television broadcast on Dec. 13, 2016.
- See n. 19.
- Bull: Stockholm Syndrome (CBS television broadcast on Jan. 24, 2017).
- Apparently this is an actual controversy. See, e.g., It’s Not a Sandwich, The Atlantic, https://www.theatlantic.com/entertainment/archive/2015/11/its-not-a-sandwich/414352/; A Hot Dog Is Definitely a Sandwich, http://ftw.usatoday.com/2015/03/a-hot-dog-is-a-sandwich; Is a Hot Dog a Sandwich? Council Rules Once and For All, https://www.usatoday.com/story/news/nation-now/2015/11/07/a-hot-dog-is-not-a-sandwich/75362898/.
- Bull: It’s Classified (CBS television broadcast on Feb. 14, 2017).
- Bull: Freefall (CBS television broadcast on March 7, 2017).
- The existence of a CSI effect is not settled. Steven M. Smith, Veronica Stinson, Marc W. Patry, Fact or Fiction? The Myth and Reality of the CSI Effect, 2007 Ct. Rev. 3 http://aja.ncsc.dni.us/publications/courtrv/cr47-1and2/CR%2047-1Smith.pdf.
- Ted Donner & Richard Gabriel, The CSI Effect and Jury Selection in Jury Selection Strategy and Science § 36:6 (3d ed. 2016-2017).
- Robinson v State, 436 Md. 560, 582, 84 A.3d 69 (2014) (noting studies from 2002 to 2007 that found no CSI effect) (two judges dissented, pointing out that the defense was the lack of any scientific evidence and that there cannot be proof without scientific evidence).
- See n. 19.
- In teaching jury selection, I have seen many law students do very persuasive introductions by placing the mini-opening first. I have learned a lot from my students.
- At some point many years ago, I picked up this technique from an article. Although I could not find that article, very similar questions are suggested by William Wegner, Robert Fairbank, Justice Normal Epstein & Eli Chernow in California Practice Guide Civil Trials & Evidence, Ch. 5, app. C (29).
- JAY HEINRICHS, THANK YOU FOR ARGUING, Three Rivers Press, 2013.