Wednesday, February 24, 2010

Jury Trial: Attorneys' Voir Dire Perspective

By John DiMotto
In my last post, I discussed the role of the judge in the voir dire phase of a jury trial. Today, I want to address the role of the attorneys in voir dire.
While it is the responsibility of the judge to "protect the record" that is, to ensure that the rules of evidence and the rules of civil/criminal procedure are followed in order to achieve a just outcome, the responsibility of the attorneys is different. To the extent that a judge serves as a "referee" in the trial process, the attorneys serve as the "players" who want to win. The judge must be aware of everything the attorneys are doing and make rulings that require the attorneys to "play by the rules."
In the voir dire phase, the judge asks the jury panel questions to uncover any biases, prejudices or predilections that will prevent them from being fair. The bottom line for a judge is that the jurors must start the trial with a "clean slate." It is evidence that is added to that slate throughout the trial and at the end of the trial the jurors evaluate the evidence on their slate in light of the law and answer the questions on the special verdict form which constitute the verdict of the jury.
However, the attorneys have a different approach to voir dire.
First, attorneys are looking for jurors who will be receptive to their case and return a verdict in their favor. They want jurors who will be "biased" in favor of their case. They ask questions of the panel to ferret out those who will not be inclined to accept their theories and propositions.
Second, attorneys will attempt to "sell" their case to the panel in their questions. It might not be what answers they hear that are as important as the impression they make on the panel.
Third, when attorneys find panel members who appear very receptive to their case, the attorneys will often ask them open ended questions that will get those jurors to give lengthy answers to sway others on the panel to their position.
The bottom line is that the attorneys want the jury to return a verdict for their client. They want to win for their client - and there is nothing wrong with that. However, the judge must ensure that they "win" within the "rules."
In my next post, I will discuss the responsibility of the judge in the second phase of the trial - The Opening Instruction Phase.

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