June 2015 Bar Bulletin
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June 2015 Bar Bulletin

The Games Attorneys Play in Jury Selection

By Thomas M. O'Toole


Some attorneys openly admit that they are "scared to death" of jury selection. No part of the American justice system is more shrouded in mystery, gimmicks, pop psychology and other clever theories that give attorneys a sense of control over this intimidating process.

The theories vary. Some argue that cases are won in jury selection. Some see it as a time to build rapport with potential jurors. Some see it as an opportunity to "sell" the case.

With the wide spectrum of views about the importance of jury selection and what can be accomplished during the process comes a variety of common "games" that attorneys often play. The purpose of this article is to take a look at three such games and discuss the merits of each.

The Seller

The first and perhaps most common game in jury selection is trying to sell your case in voir dire. A lot of attorneys like this strategy. They will speak with great pride about how they have a particular technique that gives them that early and critical edge over their opponent. The reality is that this strategy is not only ineffective, it is counterproductive.

Jurors are not persuaded during voir dire. Most of them do not even remember this part by the time the trial is over. This should not be a surprise because jurors are typically in "cognitive shock" during the jury selection phase.

They have just learned that they might miss a substantial amount of work (at least it feels that way to them). They are realizing they may have to reorganize their entire lives during this period. On top of that, they are sitting in an intimidating environment (attorneys are used to it and sometimes forget this), and they are getting bombarded with a bunch of technical and legal terms they have never heard, may not fully understand and might not even be able to pronounce. They know nothing about the case and probably do not understand why the attorney is asking the questions he or she is asking.

None of this is conducive to persuasion and I am aware of no research demonstrating that jurors are persuaded in voir dire. It certainly would be inconsistent with the feedback I have received from shadow jurors and actual jurors who were interviewed after trial.

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