October 2014 Bar Bulletin
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October 2014 Bar Bulletin

Jury Selection and Voir Dire: Don't Ask, Don't Know

By Laurie R. Kuslansky

 

John Colville once said of Winston Churchill, "He fertilizes a phrase or a line of poetry for weeks and then gives birth to it in a speech."

The same holds true for great voir dire questions asked during jury selection. How a question is asked dictates how it is answered. Skillful voir dire questions result from keen awareness of potential nuances, precise wording, intentional phrasing and delivery.

Notice what certain variations elicit: "Someone who files a formal discrimination complaint probably has a valid case" (48 percent agree nationally). Many of the same people, however, agreed that "people often claim discrimination when they don't get what they want" (52%) and that "poor performers are much more likely to complain of discrimination than good performers" (55%).

Similarly, when asked, "Do you believe there are too many lawsuits nowadays?" 79 percent of people nationally say, "Yes." Follow-up question: "If someone is badly hurt by a product, do you think it's frivolous of them to sue the company that made it?" Most common answer: "No."

"Are you an environmentalist?" Most common answer: "Yes." Follow-up question: "Are you a member of or do you contribute money to any environmental organizations?" Most common answer: "No."

"Do you believe in racial profiling?" Most common answer: "No." Follow-up question: "Should people from Muslim countries get extra scrutiny?" Most common answer: "Yes."

The answers to those follow-up questions reveal different mindsets than the often-misleading answers to the primary questions, which can lead to mistaken judgments. Good follow-up questions yield important information, but are often unasked. Don't be satisfied (or worried) too soon by the first answer you get.

Research by retired D.C. Superior Court Judge Gregory E. Mize, co-chair of the D.C. Jury Project, revealed that while 28 percent of prospective jurors in both civil and criminal cases failed to respond affirmatively to questions in open court, 10 percent of those "silent ones" in civil cases and 17.5 percent in criminal cases later revealed biases that yielded a cause strike in follow-up individual interviews.


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