Drills for Interviewing Witnesses
Drill 1: Written Voir Dire Analysis
Using the Archie fact pattern, think about what written individual voir dire questions you would want to ask in a supplemental questionnaire. Take a look at what the judge will have asked with the Benchbook questions and take a look at the questionnaires that the panel members will already have filled out. Recognize that you really don’t learn much information about the panel members from those two sources. Ask yourself, what other information do I need in order to learn whether this particular panel member should not sit on this court-martial? Your goal in the written individual voir dire is to gather information so you can properly exercise your challenges.
Drill 2: Individual Oral Voir Dire
Take the written voir dire questions that you have come up with and give them to a mock panel member. The key is to find someone that is not a lawyer or a paralegal – you want a regular person.
After they answer the written questions, ask the per son short, open-ended questions so that you can really learn about their belief system or their personal experience. You should do very little talking. The person should do most of the talking. Get comfortable giving up control. A common mistake is to stop the questioning short because “I didn’t want to go any farther because I didn’t want to set him up for a challenge or I didn’t want him to rehab himself.” Don’t hide your head in the sand. Get the truth. If you don’t go there, the other side will, so just go there.
You should be saying, “Why do you think that” and “what do you mean by that.” You also need to be able to tie everything they are doing into a causal challenge under “fair and impartial” or so that they can rank the panel members to properly exercise their peremptory. Someone who has inaccurate folk knowledge about the rate of false allegations might not be fair and impartial.
Drill 3: Group Voir Dire
Group voir dire is not a good place for gathering information. If you never do group voir dire again, you would do better than most people are doing right now. If you do group voir dire, it should be about educating the panel on belief systems that might run counter to their case. Put together a mock panel of five to eight people.
The key is that they cannot be lawyers or paralegals. Read them the basic Benchbook instructions. Then try to expose belief systems and work to teach the panel not to use those belief systems.
Ask should ask a lead-in question, then allow the panel to respond. To protect the record, you should say, “Thank you, panel member X.” Once the you is exposed, they should ask why the bias should not be followed. The goal is not to kick people. The goal is to kill the bias.
What is the first thing that comes to mind when you hear that the accused will not testify?
Well, why would it be that an innocent person might not testify?
Does everyone now see why the judge told you that you can’t hold it against SGT Jones if he
ONLY DO THIS IF THE ACCUSED ISN’T GOING TO TESTIFY
What is the first thing that comes to mind when you know the accused will not put on a case?
Well, why might it be than an innocent person might not present evidence?
Does everyone now see why the judge instructed you that you cannot hold it against SGT Jones if he doesn’t produce any evidence?
ONLY DO THIS IF YOU ARE NOT PUTTING ON A CASE
What is the first thing you think when you see the government has gone through all this trouble to
bring the accused to trial?
Well, how could it be that an innocent person is brought into court?
Does everyone now see why the judge instructed you to presume that SGT Jones is innocent?
If a woman can get a man so worked sexually that if the man then takes the sex father than the woman
wanted, should the man not be punished?
The 25/50 loan scenario (If a friend asks for a $50 loan, but you only want to loan him $25 so you only give him $25, can the friend then say, “Well, I’m taking the whole $50 anyway?”)
The law says, no means no. Can everyone follow that?
If a woman behaves in a way that places her in a risky situation, does she assume some of the risk or
blame for what might happen to her later?
The ATM scenario (If a well-dressed man goes to an ATM late at night in a crime – ridden part of town where the lighting is bad and no one is around, and he then gets mugged, do we let the mugger off?)
The law says, no means no; words or acts that show a freely given agreement. Can everyone follow that?