PRACTICING JURY SELECTION

The Critical Importance of Practicing Your Voir Dire

This article by Thomas M. O’Toole, Ph.D. is worth a reread:

Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat. 

Statistics indicate that fewer and fewer cases make it to trial, which means most attorneys have had few opportunities to conduct voir dire. Even for experienced attorneys, it may have been years since the last time they picked a jury. Additionally, jury selection is not something that comes natural to most attorneys as it is the opposite of what most attorneys are used to doing – arguing as opposed to listening. Many attorneys admit that they do not like voir dire and that it is the one thing about trial that makes them nervous. The anecdote to all of this is PRACTICE.  Practice will make you better. 

Some of the best attorneys at voir dire that I have seen are former prosecutors. These are attorneys who have spent a lot of time in the courtroom picking juries, meaning they have more practice than most. They have done it so many times that they have honed their skillset and can conduct an effective and efficient voir dire. Despite this experience, some former prosecutors will still tell you that they still practice their voir dire. 

This article addresses the importance of practicing voir dire and how to effectively do so.  

Let’s start with some clarity on what constitutes practice. I’ve often had attorneys tell me they practiced their opening statement when the reality is that they just sat in their office and silently read through it to themselves. That is not practice. Like opening, true practice requires that you stand up and deliver the voir dire. How something reads on paper and how it sounds when it comes out can be very different. You may find that a voir dire question you have scripted for yourself does not sound right, or is too choppy, when delivered. This is something that should be discovered during practice, not during the actual voir dire. The latter has the potential of making you look disorganized, nervous, inarticulate, and ill-prepared, which is not the ideal first impression. When these mistakes happen in live voir dire, it is not unusual for an attorney to just scratch the question and move on, which means a potentially important issue has been skipped over. 

If you are in federal court, practice becomes even more important since you will likely only receive ten to fifteen minutes for your voir dire, which means you must be incredibly organized and efficient. Every error takes away from your precious time to learn important information about your jury pool.

While practicing the delivery of your voir dire by yourself is a step in the right direction, it is even more valuable to practice in front of a group of people. This will create a more “real-world” feel to the practice. It also creates an opportunity to get feedback on your questions. Sometimes, a question makes perfect sense to you, but the potential jurors do not understand what you are trying to ask. Maybe it is because you know the issues in your case too well and certain questions make sense to you, but not too someone totally unfamiliar with the case. Practicing with a group of people will get you that feedback. An easy way to get a group of people is to ask folks from your office to volunteer to meet for thirty minutes or so and play the role of prospective jurors. If you work in a small office, consider getting a group of friends together at your house. Another option is to recruit some mock jurors in order to create a more real-world environment of unfamiliar faces. 

As you practice your questions with office members, friends, or mock jurors, track the information that you are learning from their answers. This will help you determine whether the questions you are asking are getting you the desired – that is meaningful – information. Sometimes, the idea of a particular question might seem brilliant, but when you ask it, you find that you do not learn what you thought you might learn. 

I have had some attorneys express concerns about some voir dire questions, noting that they will probably only result in a few raised hands. However, this is exactly the point. You only have a few peremptory strikes, so you want to ask questions that identify those ideal candidates for a strike. A question that results in nearly everyone raising their hand does little to help you differentiate genuine strike candidates from the rest of the venire.

This process will also help you plan for how you are going to track the answers during voir dire. Ideally, you will have a colleague, paralegal, assistant, or someone else in court during jury selection who will track jurors’ answers for you. It is incredibly difficult to both conduct voir dire and track all the information at the same time. However, if you have no other choice than to do both, practicing ahead of time will help you figure out the best process for effectively completing both tasks. There are also a variety of jury selection software programs for iPads and PCs out there, such as iJuror or JuryLens, that you may want to consider.

Practice sessions help you hone your questions as well. In many respects, voir dire is an art. Knowing what information you need to get does not guarantee you will get it. The “art” is in crafting questions that make jurors feel comfortable disclosing this information, which involves not only the language, but the delivery as well. This may not be a big deal with simple issues, such as whether a potential juror has ever ridden on a train, but it becomes much more difficult on sensitive issues, such as political beliefs, demographic issues (e.g., financial situation), and other personal issues. Research has shown that people will often answer these kinds of questions based on what they believe the questioner wants to hear or what the socially-acceptable or appropriate answer is rather than providing the honest answer. Consequently, it is important to craft and deliver questions that make jurors feel comfortable being honest. 

One type of question that is very effective is the forced-choice question. A forced-choice question presents two sides to an issue and asks who tends to agree with one particular side (i.e. the opinions that are a problem for you and your client). This kind of question is effective because, as you present the two sides, you are presenting them as reasonable, but divergent views. You are not casting any kind of judgment. For example, consider the following question: “I want to ask you about guns. I have some friends who hunt regularly and own quite a few guns. Consequently, they are very comfortable around guns. I have other friends who do not hunt and do not own any guns. Some of them openly tell me that being around guns makes them very nervous and uncomfortable. By a show of hands, how many of you are more like that second group of friends and, for whatever reason, are just very uncomfortable around guns?” 

In this example, I am presenting both sides as perfectly reasonable. Indicating that I have friends on both sides helps accomplish this. I conclude by asking very innocently, who tends to be like that second group of friends. This simple technique can help diffuse some of the issues that might prevent prospective jurors from fully disclosing their views. 

Even after practicing, it is important that you not be afraid to make mistakes when you conduct your actual voir dire. Everyone makes mistakes and jurors understand this. How you cope with that mistake impacts your credibility. If a question comes out the wrong way or you misspeak, back up and start over. Some light-hearted self-deprecation works wonders here. I have seen attorneys make simple comments (after they make a mistake) along the lines of, “Wow, I really botched that one up. Let me try again.” It is okay to do this. It humanizes you and can contribute to your overall likability in the jurors’ eyes.

In summary, one of the most accurate claims about jury selection is that, while you cannot win your case during jury selection, you can certainly lose it there. Voir dire is a critical moment in any case. It creates first impressions about you as an attorney and about the case. Consequently, it is critically important to practice and refine your strategy so that you can perform at your best. The actual voir dire at trial should never be the first time you “practice” your questions.

Thomas M. O’Toole, Ph.D. is the president of Sound Jury Consulting. You can learn more at www.soundjuryconsulting.com. 

Republished with author Thomas M. O’Toole’s permission. Originally published in the January 2019 issue of the King County Bar Association Bar Bulletin and displayed on its website with this notice: All rights reserved. All content of this website is copyrighted and may be reproduced in any form including digital and print for any non-commercial purpose so long as this notice remains visible and attached thereto.

THE BEST JURY SELECTION HANDBOOK

Carolina Academic Press published Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection (374 pages) by me and my co-author Thomas O’Toole. CAP makes the following statements about the book:

Jury selection can be a terrifying experience for even the most seasoned trial attorneys. Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection dissects the process and highlights the strategic choices available to trial attorneys at every step of the process. This book is intended for lawyers who are acquiring their jury selection skills, veteran trial lawyers who want to refresh and expand their approaches and law students. In essence, this book provides a comprehensive view of the jury selection process that can help all attorneys get a better perspective on the strategic choices available to them at every step of the process. 

The book offers two perspectives on the principles and practices for conducting jury selection: that of a trial advocacy professor, who has extensive trial experience as well as trial advocacy training, and that of a jury consultant, who has picked over 200 juries across the country in state and federal courts on a wide variety of civil and criminal matters with exposure up into the billions.

The book provides practical guidance for how to prepare for jury selection; craft motions and responses to motions regarding voir dire; exercise challenges; make favorable impressions of counsel, the client, and the case; break the ice and question prospective jurors; and evaluate jurors and tap into hidden beliefs and pre-dispositions. 

The book provides role-play jury selection assignments for both a civil and a criminal case that can be utilized in law school trial advocacy and clinic courses and in lawyer CLE or in-house law firm professional development training sessions. 

Robust online appendices provide examples of jury questionnaires, motions and responses to motions relating to jury selection, and transcripts of a dozen complete jury selections in both federal and state courts and civil and criminal cases.

Court Embraces Remote Jury Selection

 It is doubtful that once the virus isolation ends that jury selection will ever be the same. King County Superior Court - Seattle, Washington - has been conducting jury selection via Zoom. The Court's website provides clear instructions for prospective jurors. Here is what those prospective jurors will find on the Court's website.

Remote Jury Selection

 

Rayvid's Jury Selection Platform Under Construction

Online jury selection looks like it is here to stay. During the pandemic, jury trials have been conducted remotely via Zoom. In King County, Washington, the Superior Court began with bench trials over Zoom and by the beginning of 2021 had conducted 100 of them. Then, the court started holding virtual civil jury trials. For all of these trials, the jurors remained at home and the other participants were either all or partially remote. Washington federal courts also began remote trials.

Not only is the court system evolving to accommodate conducting remote jury trials but also industry is adapting and evolving. A leader in this endeavor is Rayvid. Rayvid’s website explains:

 “Rayvid was founded at the start of the pandemic by former business and technical leaders from Amazon, Expedia and Google because we believe that the right technology can create a more equitable, efficient and accessible legal system.

“More people in the world now have access to the internet than to justice. This has been exacerbated by social distancing and quarantine but the underlying opportunity for justice to be more democratic will not disappear with a vaccine.”

Working with King County Superior Court, Rayvid has been constructing a jury selection platform. I watched an early mock jury selection using Rayvid. My Seattle University Law School students served as prospective jurors and veteran trial lawyers conducted voir dire with a King County Superior Court Judge presiding. All of the participants in the jury selection exercise were either at home or in an office. Rayvid has built its site specifically for jury selection. To view a video of the platform click here.

Remote jury selection has obvious benefits for both the court and the prospective jurors. Above all else it saves time and money. Jurors no longer need lose time at work to traipse downtown, park, and go to the courthouse where they sit for hours waiting to be sent out to a courtroom where they may never serve because they were excused during the jury selection process. It can involve more citizens in the jury selection process. As Rayvid points out, in Los Angeles county, 90 percent ignore their jury summons.

Thomas O’Toole, my co-author of Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, along with Kevin Boully discussed remote trials in an article entitled “The Impact of Remote Trials on Jury Decision Making” (King Count Bar Bulletin January 2021). They wrote, “Zoom fundamentally changes the nature of the interaction between attorneys and jurors, making it much more difficult to build rapport.” Making a personal connection through a computer screen is just one aspect of remote jury selection that trial lawyers will need to adjust to. As the article points out, lawyers who are accustomed to moving around a courtroom and dramatically gesturing will have to consider how to adapt so as to be effective when they are viewed on a screen. While these and other differences from in-person jury selection are important for effective trial advocacy, the benefits of remote jury selection seem to outweigh them. 

When normalcy returns and trials return to the courtroom, it is hard to believe that the jury selection process will return to what it was. Remote jury selection saves both the court and prospective jurors time and money.

Jury Selection Handbook’s Robust Website

Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection has a robust companion website. This website contains invaluable transcripts of jury selections, sample juror questionnaires and motions including these: change of venue; for additional peremptory challenge; reasonable time for counsel to question the jurors; challenging the array; and so on. 

In addition, the website is regularly supplemented with additional materials. The 2020 Supplement contains the following new articles by the authors as well as other supplementary materials:

Article: Navigating Jury Selection Over Zoom

Article: The Critical Importance of Practicing Your Voir Dire

Article: Historic New Rule: Jury Selection and Implicit Bias

Article: Understanding Washington’s New General Rule on Racial Bias in Jury Selection 

Article: Juror Bias—What Can Be Done About It?

Defendant Paul J. Manfort Jr.’s Motion for Change of Venue and for Other Relief Relating to Jury Selection and supporting Memorandum

Navigating Jury Selection Over Zoom

Navigating Jury Selection Over Zoom

By Thomas M. O’Toole, Ph.D. and Kevin R. Boully, Ph.D.

King County Superior Courts recently announced that voir dire will mostly be conducted over Zoom as part of the effort to resume civil jury trials during the COVID-19 pandemic. This move allows trials to resume without the need for large groups of people to be in the same place in order to conduct jury selection. It is an important step in balancing the public health with the need for the justice system to move forward. However, this also represents new and uncharted territory, so in this month’s column, we take a close look at the research on communication over videoconferencing and what it means for attorney strategy in a world of virtual jury selection.

We examined a variety of academic research where empirical research was conducted to examine the effects of video-conferencing on communication, engagement, self-disclosure, and a variety of other factors. This research focused on the use of videoconferencing in both academic learning and in the workplace. To no surprise, there is very little existing research on the effect of videoconferencing on jury decision-making or the voir dire process. 

Overall, the results are mixed on the relationship between videoconferencing and self-disclosure. There is a presumption in a lot of the literature that there is more self-disclosure over videoconferencing than face-to-face interviews and some research supports this. For example, in one research study, the participants reported that it made them much more comfortable talking about sensitive topics in a comfortable and familiar environment such as the living room in their home. However, there is also a lot of research out of academia that shows that there is less engagement and consequently, less self-disclosure with videoconferencing than with face-to-face communication. 

The lack of agreement in the research on this issue of self-disclosure makes it difficult to predict what this will mean for voir dire over Zoom, but regardless of the findings on self-disclosure, there is research on how to increase engagement over video conferencing to overcome this potential barrier, which is what we will focus on for the remainder of this column. 

1. Model Good Behavior. 

First, the research shows that social cues for self-disclosure are much more important over videoconferencing than they are with face-to-face communication. In other words, in group videoconferencing, which will be the case for Zoom voir dire in King County civil cases, the venire members will look to the behaviors of others on the Zoom conference as cues for the social norms of communication in that setting. This means it is important for attorneys to establish a favorable norm for disclosure early in the process. There are a variety of ways to accomplish this. 

Sequence wisely. First, the attorneys should select initial questions that are easy to answer and discuss, and ideally create a more talkative environment. For example, a plaintiff attorney might want to start with questions that elicit tort reformer attitudes, since jurors often have very little hesitation offering their general views of lawsuits during jury selection.

Select good volunteers. Alternatively, the attorneys might try to identify a venire member who they think will be talkative for their first question or two, so that talkative venire member establishes the social norm of full disclosure. When successful with this approach, the attorneys should immediately reinforce the venire member’s self-disclosure by thanking them and explaining that those are exactly the kind of answers that they are looking for from venire members. 

2. Cue With Questionnaires. 

Some research, particularly that focused on HR and the workplace, suggests that interviewees perform better and are more engaged when they are provided the questions in advance. While it is unclear whether or not King County judges would be open to allowing the venire to see the voir dire questions in advance, the court has made it clear that it intends to rely on expanded use of supplemental juror questionnaires. In other words, while the questionnaires in the past have generally been limited to the standard short forms (with some exceptions), the court intends to allow attorneys to submit additional, case-specific questions for the venire members to answer on questionnaires in advance of voir dire. 

These questionnaires, when well-written, could have the same effect as providing the questions in advance. In other words, attorneys can use the questions on the questionnaire to cue the venire members into the topics that they are most interested in discussing in voir dire.  

3. Promote Engagement. 

Research focused on online learning has also found that there is often less engagement over videoconferencing that there is with face-to-face communication in the classroom. Specifically, students tend to withdraw more from online discussion, which leads to poor retention rates, less successful outcomes, and weaker relationships with the teacher. Consequently, it is important for attorneys to look for ways to promote engagement during Zoom voir dire. 

Know your style. This may require significant changes in communication styles. For example, research shows that nonverbal cues are less effective over videoconferencing. They are less likely to be perceived, in part because non-verbal cues come from the whole body of the speaker (i.e. gesturing), not just the face, the latter of which is all the venire members see in the screen in front of them. There is also a weakened effect of tone and similar verbal cues. Consequently, attorneys who rely on this interpersonal style to make venire members comfortable during voir dire may need to reassess their approach to voir dire.

Use your eyes. There are some suggestions, though little research to support it, that it is helpful for speakers to look at their camera rather than the screen. This is a difficult habit to create, but the goal is to create a sense of eye contact with the people they are communicating with over Zoom. This makes some sense since we know audience members are more likely to tune out if a speaker never makes eye contact with them. This appearance of eye contact may lead to better engagement by venire members. 

Deploy demonstratives. Attorneys might also want to consider incorporating a visual component to their voir dire, though it will be important to discuss this strategy with the judge in advance. While rare, we have seen some attorneys project their voir dire questions onto a screen in the courtroom. Attorneys might consider doing something similar by sharing their screen. Even better, attorneys should consider putting some voir dire questions onto a PowerPoint slide where they can incorporate color and some other simple design factors that make the slide visually appealing to look at. This kind of variety might create more engagement, particularly since it requires jurors to actually focus on their screen and read something in front of them. 

4. Prioritize De-Selection.

Finally, research shows that it is much more difficult to build rapport when videoconferencing, particularly when the participants cannot exchange emails in advance and there is generally little or no interaction between the participants outside of the videoconference. To be clear, rapport is different than engagement. Rapport is about building a relationship with your audience, while engagement refers to making them more active participants in the process. This is important to note because many attorneys have strong beliefs about devoting voir dire time to building rapport with their potential jurors. The research suggests such strategies will likely prove ineffective over Zoom. Consequently, Zoom voir dire may force attorneys to focus on what is most important in jury selection: de-selection. Rather than wasting valuable time talking about subjects that provide little meaningful information about the potential juror, attorneys should focus on questions about the jurors’ attitudes and experiences and whether or not those attitudes and experiences make it difficult for a particular venire member to be fair and impartial. 

5.  Do a Dry-Run! 

Perhaps the most important lesson in all of this is that attorneys should practice voir dire over Zoom ahead of their actual trial. Even the most experienced litigators have little to no experience with conducting voir dire over Zoom and the research clearly shows it is different than face-to-face voir dire, with a variety of potential limitations that could make tried and true jury selection strategies less effective.

Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting. Kevin Boully, Ph.D. is a senior litigation consultant at Persuasion Strategies. 

Republished with author Thomas M. O’Toole’s permission. Mr. O'Toole is the co-author of Jury Selection Handbook which was published by Carolina Academic Press in 2018. This article was originally published in the King County Bar Association Bar Bulletin 

“JURORS WILL BELIEVE ANYTHING (THAT THEY ALREADY BELIEVE)”: An article by Ken Lopez.

Ken Lopez is the President/CEO of A2L Consulting. He recently authored an article in the King County Bar Bulletin in which he recommends the use of aikido, a martial art, approach to trial. Lopez puts it this way:

“This is the idea that you can use someone's momentum against them. If they are running at you, you can move to the side and trip them -- and they will fall. This requires far less energy from you. Similarly, in the courtroom, while there is no physical contact (hopefully), there is certainly a direction and a momentum in the way factfinders arrive at conclusions.”

This concept of using your opponent's momentum to your advantage is an approach covered in Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection.

You can read Ken Lopez's full article here.[1]

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[1] Used with the permission of the author Ken Lopez

GET A COPY OF JURY SELECTION HANDBOOK

You can get a copy of Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection if you teach and want to request a copy of this course book. The preferred method of getting an examination copy is to visit the Jury Selection Handbook's page and just click on "request a complimentary copy" button at the bottom of the page.

Your request should include the course name for which the book is being considered, semester(s) when the course is to be taught, the projected enrollment for the course(s) and the institution's address, email address and phone number.

You may also email your request to comp@cap-press.com.

See this website for reviews of Jury Selection Handbook.

RACIAL DISCRIMINATION IN JURY SELECTION: FLOWERS V. MISSISSIPPI 2019

Sheri Johnson, Curtis Flowers attorney

On June 21, 2019, the United States Supreme Court in Flowers v. Mississippi reversed the murder conviction and sentence to the death of black defendant Curtis Flowers. Justice Brett Kavanaugh, writing for the majority stated that Curtis Flowers had not been provided with “(e)qual justice under law” because his criminal trial was not “free of racial discrimination in the jury selection process.” Justice Kavanaugh wrote that the decision broke “no new legal ground.”

The case before the Supreme Court involved the 1996 murder of four people in a Tardy Furniture Store in Winona, Mississippi. Curtis Flowers at that time was 26 years-old. The prosecution’s theory was that Flowers was a disgruntled former employee of Tardy’s who had been fired. The same District Attorney, Doug Evans, prosecuted Curtis six times. Two trials resulted in hung juries and the Mississippi Supreme Court reversed three other convictions for prosecutorial misconduct and racial bias in jury selection. The Mississippi Supreme Court upheld the sixth conviction and death penalty in which the jury was composed of one black man and 11 whites. It was the sixth conviction and sentence that was before the United States Supreme Court.

Justice Kavanaugh’s opinion meticulously explored the trial record and found instances suggesting racial bias played a part in the exercise of the District Attorney’s peremptory challenges. He wrote the following in referring to the first four trials that spanned a decade, “We cannot ignore the history. We cannot take that history out of the case.” During the six trials, Evans had struck 41 of 42 black jurors, including five of the six black jurors in the case before the United States Supreme Court. Justice Kavanaugh wrote, “The state’s decision to strike five of the six black prospective jurors is further evidence suggesting that the state was motivated in substantial part by discriminatory intent.”

Justice Kavanaugh also pointed to “dramatically disparate questioning” of black prospective jurors in order to find a pretext for exercising a peremptory challenge. He noted that District Attorney Evans asked black jurors an average of 29 questions in contrast to the 11 questions of white prospective jurors—an average of one question each.

Additionally, Justice Kavanaugh pointed out that the one black prospective juror who was “similarly situated to white jurors who were not struck by the State.”

Justice Kavanaugh concluded as follows regarding the accumulated facts:

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U.S. ___, ____(2016) (slip op. at 23) (internal quotation marks omitted). In reaching that conclusion, we break on new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.

Justice Clarence Thomas wrote a scathing dissent (in which Justice Gorsuch partially joined), that ended as follows:

If the Court’s opinion today has a redeeming quality, it is this: The State is perfectly free to convict Curtis Flowers again. Otherwise, the opinion distorts our legal standards, ignores the record, and reflects utter disrespect for the careful analysis of the Mississippi courts. Any competent prosecutor would have exercised the same strikes as the State did in this trial. And although the Court’s opinion might boost its self-esteem, it also needlessly prolongs the suffering of four victims’ families. I respectfully dissent.

For a thorough discussion of Batson,  consult Jury Selection Handbook.

PRACTICING YOUR VOIR DIRE

The Critical Importance of Practicing Your Voir Dire

By Thomas M. O’Toole, Ph.D.

            Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat.

Statistics indicate that fewer and fewer cases make it to trial, which means most attorneys have had few opportunities to conduct voir dire. Even for experienced attorneys, it may have been years since the last time they picked a jury. Additionally, jury selection is not something that comes natural to most attorneys as it is the opposite of what most attorneys are used to doing – arguing as opposed to listening. Many attorneys admit that they do not like voir dire and that it is the one thing about trial that makes them nervous. The anecdote to all of this is PRACTICE.  Practice will make you better.

Some of the best attorneys at voir dire that I have seen are former prosecutors. These are attorneys who have spent a lot of time in the courtroom picking juries, meaning they have more practice than most. They have done it so many times that they have honed their skillset and can conduct an effective and efficient voir dire. Despite this experience, some former prosecutors will still tell you that they still practice their voir dire.

This article addresses the importance of practicing voir dire and how to effectively do so.  

Let’s start with some clarity on what constitutes practice. I’ve often had attorneys tell me they practiced their opening statement when the reality is that they just sat in their office and silently read through it to themselves. That is not practice. Like opening, true practice requires that you stand up and deliver the voir dire. How something reads on paper and how it sounds when it comes out can be very different. You may find that a voir dire question you have scripted for yourself does not sound right, or is too choppy, when delivered. This is something that should be discovered during practice, not during the actual voir dire. The latter has the potential of making you look disorganized, nervous, inarticulate, and ill-prepared, which is not the ideal first impression. When these mistakes happen in live voir dire, it is not unusual for an attorney to just scratch the question and move on, which means a potentially important issue has been skipped over.

If you are in federal court, practice becomes even more important since you will likely only receive ten to fifteen minutes for your voir dire, which means you must be incredibly organized and efficient. Every error takes away from your precious time to learn important information about your jury pool.

While practicing the delivery of your voir dire by yourself is a step in the right direction, it is even more valuable to practice in front of a group of people. This will create a more “real-world” feel to the practice. It also creates an opportunity to get feedback on your questions. Sometimes, a question makes perfect sense to you, but the potential jurors do not understand what you are trying to ask. Maybe it is because you know the issues in your case too well and certain questions make sense to you, but not too someone totally unfamiliar with the case. Practicing with a group of people will get you that feedback. An easy way to get a group of people is to ask folks from your office to volunteer to meet for thirty minutes or so and play the role of prospective jurors. If you work in a small office, consider getting a group of friends together at your house. Another option is to recruit some mock jurors in order to create a more real-world environment of unfamiliar faces.

            As you practice your questions with office members, friends, or mock jurors, track the information that you are learning from their answers. This will help you determine whether the questions you are asking are getting you the desired – that is meaningful – information. Sometimes, the idea of a particular question might seem brilliant, but when you ask it, you find that you do not learn what you thought you might learn.

            I have had some attorneys express concerns about some voir dire questions, noting that they will probably only result in a few raised hands. However, this is exactly the point. You only have a few peremptory strikes, so you want to ask questions that identify those ideal candidates for a strike. A question that results in nearly everyone raising their hand does little to help you differentiate genuine strike candidates from the rest of the venire.

            This process will also help you plan for how you are going to track the answers during voir dire. Ideally, you will have a colleague, paralegal, assistant, or someone else in court during jury selection who will track jurors’ answers for you. It is incredibly difficult to both conduct voir dire and track all the information at the same time. However, if you have no other choice than to do both, practicing ahead of time will help you figure out the best process for effectively completing both tasks. There are also a variety of jury selection software programs for iPads and PCs out there, such as iJuror or JuryLens, that you may want to consider.

            Practice sessions help you hone your questions as well. In many respects, voir dire is an art. Knowing what information you need to get does not guarantee you will get it. The “art” is in crafting questions that make jurors feel comfortable disclosing this information, which involves not only the language, but the delivery as well. This may not be a big deal with simple issues, such as whether a potential juror has ever ridden on a train, but it becomes much more difficult on sensitive issues, such as political beliefs, demographic issues (e.g., financial situation), and other personal issues. Research has shown that people will often answer these kinds of questions based on what they believe the questioner wants to hear or what the socially-acceptable or appropriate answer is rather than providing the honest answer. Consequently, it is important to craft and deliver questions that make jurors feel comfortable being honest.

One type of question that is very effective is the forced-choice question. A forced-choice question presents two sides to an issue and asks who tends to agree with one particular side (i.e. the opinions that are a problem for you and your client). This kind of question is effective because, as you present the two sides, you are presenting them as reasonable, but divergent views. You are not casting any kind of judgment. For example, consider the following question: “I want to ask you about guns. I have some friends who hunt regularly and own quite a few guns. Consequently, they are very comfortable around guns. I have other friends who do not hunt and do not own any guns. Some of them openly tell me that being around guns makes them very nervous and uncomfortable. By a show of hands, how many of you are more like that second group of friends and, for whatever reason, are just very uncomfortable around guns?”

In this example, I am presenting both sides as perfectly reasonable. Indicating that I have friends on both sides helps accomplish this. I conclude by asking very innocently, who tends to be like that second group of friends. This simple technique can help diffuse some of the issues that might prevent prospective jurors from fully disclosing their views.

Even after practicing, it is important that you not be afraid to make mistakes when you conduct your actual voir dire. Everyone makes mistakes and jurors understand this. How you cope with that mistake impacts your credibility. If a question comes out the wrong way or you misspeak, back up and start over. Some light-hearted self-deprecation works wonders here. I have seen attorneys make simple comments (after they make a mistake) along the lines of, “Wow, I really botched that one up. Let me try again.” It is okay to do this. It humanizes you and can contribute to your overall likability in the jurors’ eyes.

In summary, one of the most accurate claims about jury selection is that, while you cannot win your case during jury selection, you can certainly lose it there. Voir dire is a critical moment in any case. It creates first impressions about you as an attorney and about the case. Consequently, it is critically important to practice and refine your strategy so that you can perform at your best. The actual voir dire at trial should never be the first time you “practice” your questions.

Thomas M. O’Toole, Ph.D. is the president of Sound Jury Consulting. You can learn more at www.soundjuryconsulting.com.

Republished with author Thomas M. O’Toole’s permission. Mr. O'Toole is the co-author of Jury Selection Handbook, which was published by Carolina Academic Press in 2018. This article was originally published in the January 2019 issue of the King County Bar Association Bar Bulletin and displayed on its website https://www.kcba.org/secure/PasswordHelp.aspx?Reset=105918cc1f06353with this notice: All rights reserved. All content of this website is copyrighted and may be reproduced in any form including digital and print for any non-commercial purpose so long as this notice remains visible and attached thereto.

UNDERSTANDING WASHINGTON’S NEW GENERAL RULE ON RACIAL BIAS IN JURY SELECTION By Thomas M. O’Toole, Ph.D. and Taki V. Flevaris, J.D.

In 2018, Washington adopted GR37, which is a new general rule that changes how racial bias in jury selection is addressed. The rule is designed to provide courts with guidance for effectively eliminating racial bias in the use of peremptory strikes. The purpose of this article to explain GR37 and what it means for litigators and judges in Washington courts.

What is the rule and does it change the jury selection process?

GR37 outlines a process for handling concerns about racial bias in the use of peremptory strikes during jury selection. There are two key procedural components. The first deals with how the issue is raised. The rule states that a party may object to a peremptory strike on the basis of improper bias by merely citing the rule. The objection must be made before the venire member in question has been excused, unless new information is discovered. The court is also authorized to raise the objection on its own. The ensuing discussion must be held outside the presence of the venire, and the proponent must then state the reasons for the strike.

The second component provides guidance to judges on determining whether to allow the peremptory strike. Under the previous process established under Batson v. Kentucky, 476 U.S. 79 (1986), the trial court was required to find that the side exercising the peremptory had engaged in purposeful discrimination in order to invalidate the peremptory. Under GR37, the court need only find that, under the totality of circumstances, an objective observer could view race or ethnicity as a factor.  The rule defines an objective observer as someone who “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.”

The rule goes on to specify five non-exclusive circumstances that the trial court should consider in determining whether or not an objective observer could view race as a factor:

·      The number and types of questions posed to the prospective juror;

·      Whether the party exercising the peremptory challenge asked significantly more questions or different questions of the juror to be struck in contrast to other jurors;

·      Whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;

·      Whether a reason might be disproportionately associated with race or ethnicity; and

·      If the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or past cases.

GR37 also specifies a list of presumptively invalid reasons for striking a prospective juror, noting that the list contains “reasons for peremptory challenges [that historically] have been associated with improper discrimination in jury selection in Washington State . . . .” The presumptively invalid reasons are:

·      Having prior contact with law enforcement officers;

·      Expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling;

·      Having a close relationship with people who have been stopped, arrested, or convicted of a crime;

·      Living in a high-crime neighborhood;

·      Having a child outside of marriage;

·      Receiving state benefits; and

·      Not being a native English speaker.

Finally, GR37 addresses reliance on the venire member’s conduct as a reason for the peremptory strike, noting that reasons such as sleeping, inattentiveness, eye contact, general demeanor, or unintelligent or confusing answers also “have historically been associated with improper discrimination in jury selection in Washington State.” GR37 thus requires reasonable notice that an attorney intends to rely on one of these reasons so that it can be corroborated by the judge or opposing counsel.

How did GR37 come about?

GR37 was born out of the Washington State Supreme Court’s recognition that the Batson framework generally failed to achieve its designed purpose. In State v. Saintcalle, 178 Wn.2d 34 (2013), the court acknowledged “a growing body of evidence” showing that “racial discrimination remains rampant in jury selection,” including in Washington.  In multiple opinions, the Justices discussed studies of actual peremptory usage, laboratory studies, case outcomes, surveys of practitioners and judges, training materials, treatises, and investigative reports.  While finding that the trial court below had not abused its discretion under Batson, the court expressed concern that Batson focuses only on purposeful discrimination, “whereas racism is often unintentional, institutional, or unconscious.”  The court also expressed concern that under the Batson framework, judges are seemingly required to brand attorneys practicing before them as racist, and may be reluctant to do so. The court went on to discuss a variety of potential avenues for addressing the shortcomings of Batson, including abolition of peremptory strikes altogether. It concluded by highlighting the need for continuing discussion and solutions to the problem.  

Following the Saintcalle decision, the ACLU spent a period of time developing a proposed court rule. The proposal was finally submitted to the Supreme Court on July 14, 2016, followed by a comment period. Numerous stakeholders submitted comments on the proposed rule, including associations representing prosecutors, defenders, plaintiffs’ lawyers, civil defense lawyers, and judges, along with numerous minority bar associations and civil rights organizations.  Because the comments reflected disagreement among these groups, the Supreme Court convened a workgroup of these key stakeholders to meet, talk through the disagreements, and either reach consensus or crystallize and explain remaining disagreements. This work group spent approximately six months working on the issue and finally submitted its report to the Supreme Court on March 18, 2018. The report included a proposed framework with alternatives and explanatory statements from the stakeholders. The Supreme Court proceeded to adopt a final version of GR 37 on April 5, 2018, and it became effective on April 24, 2018.   

What does GR37 practically mean for litigators?

GR37 effectively lowers the burden for parties objecting to a peremptory strike for reasons of racial bias. To invalidate a peremptory, the court need only find that an objective observer could view race or ethnicity as a factor. This means that when in doubt, the justice system will now err on the side of eradicating racial bias rather than upholding a peremptory strike. The rule shifts the focus away from the subjective intent of the attorney and/or party exercising the peremptory and—much like the longstanding appearance of fairness doctrine—focuses on how an outside observer might perceive the proceedings. Notably, race or ethnicity need only be perceived as a factor, rather than the factor or a predominant factor, in the use of a challenged peremptory.

By defining an “objective observer” as someone who “is aware that implicit, institutional, and unconscious biases . . . have resulted in the unfair exclusion of potential jurors in Washington State,” GR37 broadens the traditional concept of racism and requires judges to recognize that racial bias may be at play even when its presence is not obvious or conscious—even to the attorney or party exercising the strike. In other words, it asks trial judges to dig deeper and think more critically when exploring the issue of potential racial bias.

It further suggests that attorneys need to dig deeper as well. Previously, under Batson, it was the obligation of the objecting party to establish the existence of purposeful discrimination. In contrast, GR 37 makes no mention of any evidentiary burden on either party. Once the rule has been invoked, the court is directed to determine whether or not the peremptory will be upheld based on the totality of circumstances. This suggests that whenever a genuine concern over racial bias is presented, attorneys exercising peremptory strikes should have very clear and convincing explanations for why race is not a factor in the decision to exercise the peremptory.

In a nutshell, GR 37 is to be invoked whenever there is a genuine concern that racial bias might be influencing the exercise of a peremptory strike.  Under such circumstances, the peremptory will not be allowed unless there are one or more distinct reasons for the strike that are race-neutral and persuasive, so that an objective observer could not view race as a factor. As with all court rules, GR 37 is to be interpreted and applied sensibly and in light of its underlying purposes.

Important Considerations for Attorneys and Judges

At the heart of GR37 are the questions of what constitutes racial discrimination and how to identify bias in venire members. In this respect, GR37 takes a significant step forward in recognizing the reality that modern day racism is often “beneath the surface,” and not necessarily an intentional or overt act.  

GR37 forces attorneys to rethink how they identify bias in jury selection. We are a country that is obsessed with demographics and the differences between whites and blacks, men and women, old and young, and so on. It is easy (and perhaps lazy) to look at these factors first when evaluating a venire, and many attorneys do. GR37 asks attorneys to dig deeper. Demographics are meaningful only because we often assume people of similar demographics have similar experiences, beliefs, and attitudes. But research has shown that reliance on demographics is an inaccurate shortcut littered with problems. One solution is for attorneys to shift their focus to the actual experiences, beliefs, and attitudes and forget about the demographics. There is a great deal of research in psychology that suggests experiences and beliefs are the best indicators of bias and decision-making. Consequently, attorneys should focus on these characteristics and spend time exploring how they connect to the venire members’ ability to serve in the case in question.

However, in order to accomplish a shift away from the focus on demographics, attorneys may need better jury selection conditions. Specifically, more voir dire time might be needed in order for them to dig deeper. In fact, some attorneys often rely on demographics because they have so little time to gather other meaningful information about venire members. This is something for judges to consider as part of their case management practices. A short, supplemental juror questionnaire may be another useful avenue for collecting meaningful information about venire members.

As GR 37 is implemented, concerns about variation among individual judges may also arise. Every attorney knows that judges fall all over the spectrum when it comes to personality, experience, personal beliefs, and how each of those impact a judge’s decision making. With regard to GR 37, some attorneys may have concerns that a “liberal” judge could see race as a factor more often than is warranted, while “conservative” judges are too slow to conclude that race may have been a factor. There is no easy answer to this concern, which affects the entire justice system. At the same time, judge training and appellate review could promote consistency and clarity for the new framework over time, including with regard to the scope of discretion that trial judges will be afforded. 

GR37 also provides an opportunity for judges to critically examine their own practices. GR37 provides a clear standard (the objective observer) for determining whether or not racial discrimination has occurred, including an express acknowledgment of institutional, implicit, and unconscious biases. But it is the trial judge who ultimately must determine what this hypothetical observer would know and could conclude with regard to the particular circumstances in each case. At the same time, research demonstrates that judges are not immune to the implicit, institutional, and unconscious racial biases that GR 37 highlights.[1] One might question whether or not these biases could influence judges’ own determinations of whether or not race was a factor in a peremptory strike. More broadly, this issue has significant implications about the need for further reforms to the justice system. 

Conclusion

GR37 is a noble step forward in the effort to tackle racial bias in jury selection. However, racism is a complex issue with no simple solutions and continuing discussion moving forward is vital. Attorneys and judges need to critically evaluate their jury selection practices and dig deeper when it comes to determining whether or not to exclude a venire member. The research suggests that, not only will this help remove racial bias from jury selection, but it will also help attorneys become more effective at identifying actual bias in the jury pool.

Thomas M. O’Toole, Ph.D. is the president of Sound Jury Consulting. Taki V. Flevaris, J.D. is a partner at Pacifica Law Group and a Faculty Affiliate at the Korematsu Center for Law and Equality. Mr. Flevaris participated in the Washington Supreme Court’s GR 37 work group on behalf of the Korematsu Center.

Originally published in the July 2018 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.

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[1] See, e.g., Jeffrey J. Rachlinski & Sheri L. Johnson, Does Unconscious Racial Bias Affect Trial Judges, 84 Notre Dame L. Rev. 1195 (2009).