Theories on Voir Dire in Military Courts
As in civilian courts, voir dire is permitted to ensure impartiality and to “obtain information about the intelligent exercise of challenges.” R.C.M. 912(d) Discussion. “The purpose of voir dire and challenges is, in part, to ferret out facts, to make conclusions about the members’ sincerity, and to adjudicate the members’ ability to sit as part of a fair and impartial panel.” United States v. Bragg, 66 M.J. 325, 327 (C.A.A.F. 2008).
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In addition to the primary purposes of obtaining information to exercise wise challenges and to judge panel members’ ability so sit as fair and impartial jurors, there are three secondary purposes of voir dire:
- To educate the panel and to defuse weaknesses in the case. However, R.C.M. 912(d) Discussion states that counsel should not use voir dire to argue the case or present facts that will not be admissible during trial.
- To establish a theme.
- To build rapport with members.
There are several theories and techniques that assist the attorney in achieving the goals and purposes of voir dire. A few of these techniques are outlined below.
Learn, Don’t Teach
Attorneys often want to convince everyone in the courtroom that their position is the correct one and that their client should receive a favorable verdict. However, trying to change juror’s minds will alienate them, terminate potential dialogue, and encourage arguments. Instead, attorneys should listen to jurors and try to learn from them. If an attorney asks questions of the jury with the goal of learning from the jurors, the jurors will be more likely to enter into discussions with the attorney. With the information provided by jurors in this manner, attorneys will be in a better position to make challenges for cause and peremptory challenges. Jeff Kearney, Developing the Theory of the Case in Voir Dire and Opening Statement, Criminal Defense Lawyers Project, Developing the Theory of the Case Seminar (2001).
Do Not Be Judgmental of Jurors
In order to foster a good relationship, attorneys should avoid comments such as, “Do you understand that the law . . .” or “So you cannot follow the law?” With these comments, attorneys alienate both the juror receiving the comments as well other jurors empathizing with the juror. A better approach is to remember there is no such thing as a bad answer and to commend jurors for giving honest answers. Kearney, Developing the Theory of the Case in Voir Dire and Opening Statement. An effective attorney will give jurors permission (a) not to share the attorney’s world view, (b) not to be receptive of the attorney’s theory, and (c) to have biases and prejudices. An effective attorney will not try to change the jurors. If jurors oppose the attorney’s side of the case, and are inherently biased against the attorney, the attorney must honor these jurors and their beliefs. And then strike them. Denise de La Rue, Theory Inspired Voir Dire.
It is very important for attorneys to sound sincere and express genuine interest in the jurors. One technique for showing interest in the jurors is to apologize in advance for asking personal or prying questions. Attorneys should address the jury in a friendly, calm, courteous, and respectful manner. Marni Becker-Avin, The Real Purpose of Voir Dire, available at http://www.therightjury.com/publications_real_purpose.html.
Jurors will become bored if attorneys constantly repeat themselves. If the attorney repeats routine questions of each juror, the jurors will feel like the attorney does not really care about the responses or about the jurors themselves. Becker-Avin, The Real Purpose of Voir Dire.
Effectively Order Topics
Jurors will remember the first and last things they hear. With that in mind, attorneys should emphasize the strongest aspects of the case first and last. Use the middle of voir dire to diffuse negative issues and/or concerns, so that voir dire proceeds as follows:
- Introduction: Attorneys should use this time to set the tone and mood for the trial. Attorneys should use the inclusive word we to include themselves and their clients. Attorneys should inform the jurors that they will be honest with the jurors and ask that the jurors be honest with the attorneys.
- Overview of the Case
- Strong Topic
- Areas of Concern
- Strongest Topic(s)
See Kearney, Developing the Theory of the Case in Voir Dire and Opening Statement.
This technique involves asking one potential juror a specific question, listening to the response, using the juror’s name, repeating the juror’s exact words, and then asking another juror for a reaction to what the first juror said. With this technique, jurors are educating one another rather than hearing the attorney drone on. When the attorney repeats a juror’s exact words, the jurors are arguing with one another rather than with the attorney. By using the juror’s names, attorneys are complimenting the jurors who have spent all day being treated as nameless and faceless entities. Kearney, Developing the Theory of the Case in Voir Dire and Opening Statement.
Remember That a Juror’s Mind Is Like a Digital Video Recorder
Like a digital video recorder that can suggest programs based on the viewer’s interests, the juror’s brain knows what the juror’s preferences will likely be and scans the evidence and testimony to find information that the juror might like. In other words, not everything during trial is getting recorded. Specifically, a juror’s mind will filter out anything perceived to be an advertisement and will focus on events that seem to be straight information or entertainment. With this in mind, it is important that attorneys avoid phrases that will be perceived as advertisements. Sunwolf, Jury Thinking, Practical Jury Dynamics, LexisNexis (2005).