The literal translation of the French phrase voir dire is “to speak the truth.” In law, it’s the process of questioning an individual prior to jury duty or witnessing to determine their suitability.
Learning how to select a jury who’ll listen to your arguments without a predisposition against your client is a key step in winning at trial—so learning how to conduct voir dire questioning is critical for trial attorneys.
Understanding Voir Dire in the Jury Selection Process
Voir dire is your hands-on-the-steering-wheel moment to exert control over who will ultimately pass judgment on your case. While that control is limited by the potential jury pool and your ability to question and dismiss them, voir dire is when you can directly ask for truthful answers from prospective jurors.
Voir dire questioning allows attorneys to:
- Question potential jurors on matters that may impact how they judge a case
- Collect significant facts and details about each juror
- Glimpse jurors’ thought and belief systems, identities, and how they reach conclusions
In addition to weighing in on who should be included or dismissed from the jury pool, voir dire examination provides critical information that can help you tailor upcoming arguments and demonstratives to a specific jury’s makeup and characteristics.
Preparing for Voir Dire
Although you don’t know who’ll be stepping into the jury box for questioning, that doesn’t mean winging it. Voir dire examination prep can include:
- Preselection jury research such as surveys, focus groups, and mock trials
- Identifying specific beliefs, experiences, jobs, or other factors to look out for
- Drafting questions including dependencies or if/then questioning
Developing Effective Questions
Voir dire questions are used to uncover potential jurors’ relevant biases. Questions may cover:
- Whether they think they’d have difficulty ruling for/against pertinent situations
- Beliefs about right, wrong, and criminal status of pertinent actions
- Whether they believe that certain circumstances would pardon certain words or actions
- If they know anyone personally who’s been affected by similar accusations or actions
- Any relevant actions they’ve taken in the past (i.e., protecting, preventing, participating)
- Whether they believe certain laws or customs are wrong or should not be enforced
- Mores and behaviors at a family or community level that illuminate the issues above
Basically, your questions should help you determine if an individual’s vote during deliberation can be predicted to rule against your client due to bias, individual circumstance or character.
Legal Considerations and Limitations
Voir dire limits can vary by jurisdiction, case type, and possible penalty involved. Federal guidelines include:
- Number of challenges
- Amount of time allotted
- Number of questions permitted
The nature of questions may also be limited, depending on jurisdictional rules, so as to avoid certain content or outcomes such as:
- Soliciting a commitment to vote a certain way
- Sharing of protected information about the case, attorneys, or parties
- Prejudicial information
- Case arguments and certain case facts
Conducting Voir Dire
You’ll need to engage an audience, make detailed observations and on-the-spot decisions, and collect information for further use on voir dire days.
Getting the jury pool to be candid can be challenging. Instead of a back-and-forth Q&A, try to enter into a conversation that you begin by acknowledging biases. You can:
- Use open-ended rather than yes/no questions, such as how x may affect their decision
- Avoid language and phrasing that makes them “the bad guy” if they respond openly
- Phrase circumstances as more or less challenging, difficult, or likely
- Be gentle but persistent
Common Challenges During Voir Dire
Voir dire challenges fall into two categories. They’re either:
Peremptory Challenges
Peremptory challenges are at the attorney’s discretion, usually based on a potential juror’s background, experiences, or opinions, beliefs or values.
Federally, attorneys are typically limited to three peremptory challenges in civil cases and 3–20 in criminal procedures depending on whether it’s a capital, other felony, or misdemeanor case.1,2 Lower courts’ limits vary state to state.
Challenges for Cause
Challenges for cause are based on reasons including prior acquaintanceships or knowledge, bias or obvious prejudice, and inability to serve. They’re typically unlimited in number.
Invite in the Experts in Voir Dire Consulting
The voir dire process is the make-it-or-break-it step in jury selection. With no control over who shows up for jury duty and limits on your ability to question and dismiss potential jurors, every move counts.
Sources:
- Cornell Law School. 18a U.S. Code Court Rule 24 – Trial Jurors. https://www.law.cornell.edu/uscode/text/18a/courtrules-Crim/title-VI/courtrule-24
- Cornell Law School. 28 U.S. Code § 1870 – Challenges. https://www.law.cornell.edu/uscode/text/28/1870
