Before it even begins, a trial can be won or lost during jury selection. In a procedure called voir dire (“to speak the truth”), lawyers, and sometimes judges, question potential jurors from a pool of citizens summoned to court to serve jury duty. The primary purpose of voir dire is to make sure that the jurors can listen fairly and impartially to the evidence and render a verdict in accordance with the law. However, experienced attorneys will get more out of jury selection than that. They ask questions to get a sense of how a juror will respond to the evidence and arguments in the case about to be tried.
Let’s look closer at how lawyers and judges question potential jurors.
The questioning of potential jurors follows different rules depending on the jurisdiction (that is, if the case is in federal court, which district court; or, if in a state court, which state). Even within a jurisdiction, trial judges often have their own methods for picking a jury.
But no matter where the case is tried, all potential jurors are placed under oath, and though it is extremely rare, a juror could be prosecuted for giving an intentionally false answer.
In most federal courts, lawyers submit questions to the judge, who will then question the potential jurors in open court. In state courts, however, lawyers are typically permitted to question the potential jurors. In fact, the judge may not even be present during voir dire in some state courts.
To expedite the selection process, potential jurors sometimes complete written questionnaires before meeting with the lawyers or the judge. These questionnaires help to quickly eliminate certain potential jurors—such as people who do not speak English well enough to follow testimony or have conflicting pre-paid travel plans. They also identify subject areas, like prior experiences with law enforcement or the courts, for follow up questions in the courtroom. If questionnaires are not used, lawyers or judges simply ask all of their questions in open court. Potential jurors may be questioned as a group or one at a time. Once preliminary issues, such as juror availability and competency have been covered, lawyers and judges move on to more substantive questions.
Lawyers typically ask a number of questions designed to determine whether a potential juror can be fair. If, for example, the case involves a drunk-driving accident, the lawyers will want to know whether the potential juror—or a close relative or friend—has ever been involved in a car accident, or had a drinking problem. Similar personal experiences could cause a potential juror to ignore the judge’s instructions to decide the case based on the evidence and the law without “passion or prejudice.” When a potential juror has had a life experience closely resembling the facts of the case, that person will likely be excused by the court.
Lawyers also ask questions meant to discover specialized knowledge that could cause a juror to rely on outside evidence. For example, imagine a case involving arson. Veteran firefighters may not make good jurors because they are likely refer to their own professional experience during deliberations, contrary to the rules requiring them to decide the case solely based on the evidence admitted at trial and the legal instructions given by the judge. Courts usually excuse potential jurors with backgrounds that could cause them to draw on their own training and experience during deliberations.
Where voir dire uncovers a legitimate concern about a conflict of interest or a potential bias, the judge will normally dismiss the juror “for cause.” A “for cause” dismissal means the court has agreed with at least one lawyer’s argument about the unsuitability of a potential juror (or has reached this conclusion on its own). A lawyer can raise an unlimited number of “for cause” challenges during jury selection.
In jurisdictions where lawyers may directly question potential jurors, experienced counsel will usually preview their trial strategy through the questions they ask. Attorneys in federal court can use the same technique, but their questions often get filtered by the judge.
Here’s how the “preview” works: Imagine an assault case where the victim was shot with a handgun. The defendant intends to claim self-defense. The defense lawyer might attempt to determine how potential jurors will react to that trial strategy by asking questions about the right to “stand your ground,” to defend your property, to possess firearms, and to protect others from harm. Answers to these types of questions help a lawyer predict how jurors are likely to react at trial.
If potential jurors appear to have a negative view of firearms, for example, defense counsel will first try to strike them for cause. If the jurors, however, satisfy the judge that they can be fair and impartial despite their personal views on firearms, the judge will deny the attorney’s request. Then defense counsel may choose to dismiss those jurors by using what is called a “peremptory challenge.” Unlike “for cause” challenges, each side gets a fixed number of peremptory challenges. By using a peremptory challenge, a lawyer can dismiss a potential juror from the case without giving any reason to the judge.
