VoirDire Process& Practice Exercise

 Voir dire (pronounced vwar deer) is the term used to describe the procedure for selecting or impaneling

a jury that will hear a particular case. Jury selection is considered by many legal professionals tobe the single most significant procedure in the entire trial process. Voir dire, a French phrase meaning“you speak,” has as its ultimate objective the selection of a fair and impartial jury.  Since jurors generally do not speak out during the trial, voir dire is their chance to speak.

With courts, the judge as well as lawyers ask questions of prospective jurors. Questions arelimited to matters relevant to the case and those that may help attorneys decide whether or not tochallenge a person’s participation on the jury. Attorneys can challenge for cause any juror who exhibitsa bias for or against any one of the parties. For example, jurors may be disqualified if they are related toone of the parties or attorneys, stand to benefit from a decision in the case, or if they have alreadyformed an opinion about the case. Each attorney also has a certain number of challenges called peremptorychallenges which can be used to strike a juror without giving any reason. For example, a defenseattorney may get the impression that a prospective juror just does not like the defendant and will use a peremptory challenge to prevent that person from being on the jury.

There are numerous social and psychological factors that enter into the selection of a jury. Studieshave shown that women are thought to be more sympathetic to the defense, men to the prosecution. The

wealthy are thought to be more sympathetic to the prosecution, the poor to the defense. Ethnicity and

race are also thought to be important factors. Often attorneys consider the “ideal juror” to be one with

similar characteristics to their client or the victim. For example, a prosecutor would prefer potential

jurors who have similar characteristics to the victim, and defense attorneys would want individuals who

are similar to the defendant.

What is jury selection all about? Is the goal a fair and impartial jury or one that is more likely tosympathize with the attorney’s side? Realistically, attorneys insist on the former yet strategize for the

latter as part of voir dire.

This lesson provides students with an opportunity to struggle with the concept of a fair and impartial

jury as they select a jury in hypothetical cases.

Learning Outcomes:  Students will:

1. Understand the purpose of voir dire examinations.
2. Understand the right to an impartial jury guaranteed in the Sixth Amendment.
3. Develop critical thinking skills in analyzing information, determining what information

is relevant and evaluating its impact.

Fairness & Freedom: Courts as a Forum for Justice & the VoirDire Process

Instructions:

1. Answer the following:(Introductory Questions):Why is voir dire an important part of the trialprocess? What sort of information about jurors does an attorney want to discover during voir dire?What factors help make a jury fair and impartial? What factors might cause a juror to favor one side over the other side?

2. Read: IS THIS JURY FAIR? (below)It is a segment of thevoir dire exam conductedat Harold Johnson’s trial. Answer the questions that follow the fact pattern. Did Mr. Johnson receive a trial by a fair and impartial jury?

3. Read:NEW YORK v. ED JONES.(below) As a student, you maydecideif you want to play the role of Ed’s defense attorney orprosecuting attorney.From that perspective, visualize the ideal juror for your side of the case.

Answer these questions: What type of person would best?  What type of person would identify with your client’s position, with you as an attorney, or with the issues in this case? Describe the ideal juror including such characteristics as age, social background, marital status, familystatus, education, occupation, employment history, residence history, personal history, hobbies andactivities, and possible experiences that might be relevant to the case.

1. Next,consider and describe the type of person who would be least likely toidentify with your position. Give as much detail as possible.

1. You shouldbe able to reason how certain characteristics might make one person more ideal than another. Keep in mind that lawyers often disagree with each other as to who the ideal juror for a particular case may be. The ideal juror for their side is the “least sympathetic” juror for the other side.

1. Based on your descriptions, write questions you might ask during voirdire to eliminate the jurors least favorable to your side of the case (defense or prosecution, as you selected).

Practice Exercise #1:Is This Jury Fair?

Harold Johnson was convicted of robbery and sentenced to twelve years in prison.He felt his conviction was not fair because the jury foreperson, Mr. Spencer, was unableto be impartial in his case. The trial record shows the following exchange took placebetween Harold’s attorney, Mr. Pickard, and Mr. Spencer during voir dire:

Mr. Pickard (Defense Counsel): Has anybody here been robbed? (Mr. Spencer raises his hand) Mr. Spencer,due to the fact that you have recently been robbed do you think you might be a little bit more inclinedto convict regardless of the evidence?

Juror Spencer: Yes sir, I probably would.

Mr. Pickard: You think you may be a little biased?

Juror Spencer: Yes sir.

Mr. Pickard: You’re saying in all probability you wouldn’t be able to give the defendant a fair trial and

view the evidence objectively?

Juror Spencer: Yes sir.

Mr. Pickard: We challenge for cause.

Judge: Mr. Spencer, we’re not picking on you, but I have to be very careful. Let me ask you this. In

spite of your experience a couple of weeks ago, could you still listen to the evidence that comes from

this witness stand, and this evidence alone, and render a fair and impartial decision concerning the

defendant, Harold Johnson?

Juror Spencer: Yes sir, I believe I could.

Judge: You wouldn’t let the experience that you had affect you?

Juror Spencer: No sir.

Judge: Challenge for cause is denied.

Mr. Pickard: We object.

Judge: Note an objection.

Afterwards, a jury of twelve jurors was selected. Juror Spencer became the forepersonof the jury.The jury returned a guilty verdict, and Mr. Johnson was sentenced to twelve years in prison.The case was appealed, but Mr. Johnson lost the appeal.

Answer the following questions:

1. Should Juror Spencer have been removed for cause? Why or why not?

2. Why did the Judge refuse to grant the challenge for cause? Do you think Juror Spencer could listen to the case impartially and without prejudice even though he said he would consider only the evidencebrought forth at trial? Explain.

3. What else could the defense attorney, Mr. Pickard, have done in this case? If you were the

attorney, what additional questions would you have asked during voir dire?

4. What do you think was the impact of Juror Spencer becoming the foreperson of the jury?

5. If you were an appellate judge on the court hearing this appeal, would you agree or disagree withthe trial judge’s decision? Explain.

Practice Exercise #2:New York v. Ed Jones  / Selecting 12 jurors from 18 potential jurors.

First decide if wish to play the role of Jones’ defense attorney OR the prosecuting attorney.  Next, read the following hypothetical fact pattern. Next, consider the list of potential jurors that follows and select the best 12 out of the possible 18 jurors.For EVERY JUROR (18) you must state if you want them on the jury or not.  Finally, if you do NOT want any of them on the jury you MUST state (a) a TYPE OF CHALLENGE and (b) a REASON FOR YOUR CHALLENGE.

Ed Jones, is charged with first degree burglary. The complaintalleges that Jones broke into the Faber residence, 3701 Harris St., at1 a.m. on September 15. The Fabers were sleeping upstairs at thetime. It is alleged that Mr. Jones broke the den window at the rear ofthe house, pried it open and entered the house for the purpose ofstealing Mr. Faber’s rare coin collection. Only the coin collectionwas missing, and no injuries were reported in the incident.Jones, age 38, is white, single, and works as a self-employed carpenterdoing a variety of remodeling projects. He has a previousconviction for marijuana possession and dropped out of high schoolat sixteen. He rents an apartment in an interracial neighborhood locatednear the scene of the burglary. This neighborhood has experienceda dramatic increase in reported burglary crimes.This is the first time the Fabers have been a victim of crime, andthey have lived in their home for over thirty years. The neighborhoodhad been a very safe one in which to raise their three children.But times have changed. Now, as retirees, the Fabers find themselvesfearful of increased crime, yet they cannot afford to moveaway.

Instructions:

You must decide which of the following potential jurors are acceptable on the jury in the Ed Jones case.For those who are not acceptable, determine if you can strike for cause or whether youwould have to use a peremptory challenge. For the purposes of this exercise, you haveunlimited challenges for cause but only 2 peremptory challenges. For any challengefor cause you must convincingly state your reasons.

Remember a challenge for cause is used when the juror is unable to be fair andimpartial because the juror (for example): 1) is related to one of the parties or attorneys, 2) stands tobenefit from a decision in the case, 3) has already formed an opinion in the case.There are many other reasons, these are a few.

LIST OF 18 POTENTIAL JURORS – You must pick 12.

1. Sue is 34, white, single with a law degree. She is an attorney with the Legal Defense Aid where

she defends clients too poor to be able to hire an attorney. Her hobby is racing sports cars on weekends.

On Jury? Yes No – State Type of Challenge and Reasons:

2. Jonathan is 28, white, married with three small children. He is a research assistant working on a

new laser burglary alarm system.

On Jury? Yes No – State Type of Challenge and Reasons:

3. Romano is 42, Hispanic, married and works as a computer technician. He is saving money to

buy a new home in the suburbs. He is an excellent tennis player.

On Jury? Yes No – State Type of Challenge and Reasons:

4. Helen is 43, white, single with a journalism degree. She is managing editor of Neighborhood

Watch, a community based newspaper helping citizens keep their neighborhoods safe.

On Jury? Yes No – State Type of Challenge and Reasons:

5. Darren is 27, white, single, and a high school dropout. He plays lead guitar in a local band. He

was recently involved in a drug raid by local authorities.

On Jury? Yes No – State Type of Challenge and Reasons:

6. George is 65, white, retired widower who enjoys watching law shows on television. He is

married to Mrs. Faber’s sister.

On Jury? Yes No – State Type of Challenge and Reasons:

7. Jan is 46, white, and recently divorced after a bitter court battle. She has a graduate degree in

history and teaches at the University. Her former husband is a well-known trial lawyer.

On Jury? Yes – State Type of Challenge and Reasons:

8. Lee is 55, black, married with two grown children. He sells insurance and sold a policy to Mr.

Faber to insure his coin collection.

On Jury? Yes No – State Type of Challenge and Reasons:

9. Elaine is 53, black, and married. She is active in her church. Her two sons are married. Her

husband is a plant supervisor and active in the trade union.

On Jury? Yes No – State Type of Challenge and Reasons:

10. Jane is 25, white, separated from her husband. She lives with two other women in a condominium

and works as a waitress at a local bar. She didn’t finish high school.

On Jury? Yes No – State Type of Challenge and Reasons:

11. Marie is 37, white, divorced and works as a secretary. She was a victim of a purse-snatching and

has recently taken a self-defense course to protect herself.

On Jury? Yes No – State Type of Challenge and Reasons:

12. Dorothy is 51, white, and married. Her son was arrested on theft charges and convicted last

month. She is a buyer for a large retail store.

On Jury? Yes – State Type of Challenge and Reasons:

13. Clinton is 62, white, and married. He’s president of the country club, enjoys visiting his four

grandchildren and retires next year as bank vice-president. He lives next door to the judge in this case.

On Jury? Yes No – State Type of Challenge and Reasons:

14. Donald is 45, black, a widower with a degree in education administration. He is a high school

principal and very involved in community sports programs.

On Jury? Yes No – State Type of Challenge and Reasons:

15. Ryan is 36, black, married, and is an accountant. He recently hired Ed Jones to refinish his

basement. He was very satisfied with Ed’s work.

On Jury? Yes No – State Type of Challenge and Reasons:

16. Claudia is 39, white, and married with a college degree. She is a homemaker with three small

children. Her husband is an architect.

On Jury? Yes No – State Type of Challenge and Reasons:

17. Hyon is 22, Asian, and single. He was born in South Korea and became a naturalized U.S.

citizen after being adopted by a U.S. family. He is working two full-time jobs to earn tuition for graduate

school.

On Jury? Yes No – State Type of Challenge and Reasons:

18. Joe is 34, white, single and a recovering alcoholic. Six years ago, he completed a court ordered

chemical dependency treatment program following a conviction for drug possession. His civil rights

have been restored (which means he may be a juror).

On Jury? Yes No – State Type of Challenge and Reasons:

Check the following:

1. Did you select 12 jury members?
2. For each challenge for cause, have you explained your reasons?
3. Have you used only 2 peremptory challenges?

Last Updated on February 1, 2018