In a criminal trial, picking the right jurors is critical to a defendant’s chances at an acquittal. During the voir dire process, which roughly translated from Latin means “to speak the truth,” criminal defense attorneys have the opportunity to find out a great deal about potential jurors.
The purpose of pretrial voir dire is to reveal biases, conflicts and other criteria for dismissing jurors who may not rule favorably for the defendant.
Why voir dire is necessary
With voir dire, the goal is supposed to be to be impartial jurors. But if they are honest, both prosecutors and defense attorneys will admit that they attempt to stack the jury deck with those who are likely to rule on their side.
Attorneys can exclude jurors either for cause, with unlimited usage, or via a peremptory challenge — usually limited to three per side in federal court. Attorneys exclude jurors using the latter process to reject those jurors for actual or perceived biases that might be hard to prove otherwise for cause.
Lay the groundwork
With permission of the judge and acquiescence from the opposing counsel, jurors answer written questionnaires. This may be preceded by a mock trial and other pretrial research designed to achieve a favorable outcome for the client (in the case of the defense).
In state and federal court, voir dire may be conducted by the attorneys, the judge or even the clerk. In the latter instance when the court clerk winnows down the jury pool, it’s done with questions submitted by the attorneys and approved by the court.
The big five
With that in mind, if you are facing trial for a criminal offense, these below five questions for prospective jurors can be quite helpful during the process:
1. If you were the defendant, would you feel comfortable with yourself serving on the jury for this case?
2. What have you heard or seen that makes it difficult for you to judge the defendant as the other side intends?
3. What circumstances from your life remind you of this trial case? What happened and how is it similar?
4. Is there something you would like to share and the court should know that wasn’t asked?
5. Do you need to discuss any questions or situations privately?
Use voir dire to your full advantage
When a defendant’s liberty — or even life — is at risk with a guilty verdict, properly conducted voir dire can be a game-changer. Properly framed, each question can evoke candid responses based on deeper thinking by the juror. Open-ended questions elicit far more revealing answers than a “yes” or a “no.”
With the proper pretrial preparation, a skilled and knowledgeable criminal defense attorney can ethically stack the deck in the defendant’s favor.