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Jury voir dire is one of the most crucial aspects of a case, particularly in a highly publicized matter where many prospective jurors will no doubt come to court with attitudes shaped by media coverage. And, unlike many other phases of a trial where errors can be corrected, a serious mistake about even a single panelist can change a verdict. Discerning a prospective juror’s biases through voir dire is no easy task, however. When pretrial publicity is added to the mix, the challenge is even greater. Trial counsel is wise to suspect that a significant number of prospective jurors will be reluctant to identify publicly their biases or will be genuinely unaware of them. Jurors may exaggerate their ability to be impartial Counsel also should be concerned that jurors, often with the best of intentions, exaggerate their ability to be impartial and underplay the importance of their exposure to pretrial publicity. As Justice Sandra Day O’Connor recognized, “[d]etermining whether a juror is biased or has prejudged a case is difficult, partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it.” Smith v. Phillips, 455 U.S. 209, 221-22 (1982) (concurring). Only by getting jurors to talk openly about the issues of the case, or about related issues on which their views provide insight into potential relevant prejudices, can counsel have an opportunity to develop adequate grounds for dismissal of jurors for cause � always a challenge given jurors’ understandable reluctance to declare that they are unable to be impartial. Open dialogue with the jury is also important for the informed exercise of peremptory challenges, which though limited in number, can be critical to dismissing individuals whose latent biases make these jurors as significant of a concern as jurors for whom a challenge for cause can be established. Many jurisdictions substantially limit trial counsel’s right to participate in voir dire, however. In a large number of federal courts, judges conduct the entire voir dire themselves, only allowing counsel to submit written questions for the court’s consideration. How much of a handicap is judge-conducted voir dire when representing a client in a complex case who has been portrayed unfavorably by the press? Unfortunately, it can be substantial simply because counsel has far greater knowledge of the case. The core problem is that the judge’s follow-up questions may be less effective because the judge knows only a small fraction of what the attorneys know about the case and is thus unable to spot many indirect routes for uncovering subtle prejudice. Faced with these challenges, trial counsel has no choice but to urge the court to exercise its discretion and go about voir dire differently. Federal courts have this power in both criminal and civil cases. Fed. R. Crim. P. 24; Fed. R. Civ. P. 47. So how should voir dire be conducted differently? An important device for probing bias is the use of an extensive juror questionnaire containing questions relating to the specific case. There is no good reason for a judge to deny a request to use such a questionnaire in a complex case. Prior written responses to the questionnaire provide counsel with more of an opportunity to develop oral follow-up questions that directly probe particular jurors’ potential prejudices regarding key issues in the case. Written responses also promote candor, as jurors are often far more forthcoming initially when completing a written questionnaire than in discussing the same topic in open court. Counsel should also request that the court expand the size of the venire to ensure a fair and impartial jury. A substantial number of prospective jurors may be struck for cause because of extensive media coverage. Unless the number of jurors summoned is substantially in excess of the number required for jury duty, the parties may have difficulty arriving at a relatively unbiased jury. Courts have noted that cases with extensive media coverage often require expanded venires and that a larger jury pool is an important component in seeking an impartial jury. In Irvin v. Dowd, for example, the Supreme Court, in discussing the dangers of pretrial publicity, noted that the trial court had excused 268 potential jurors from a jury panel of 430 because of fixed opinions of guilt based on media coverage. 366 U.S. 717, 726-727 (1961). In the criminal tax case against Jimmy Hoffa, “[o]ver 500 veniremen were questioned on the voir dire before the twelve jurors and four alternates were chosen.” U.S. v. Hoffa, 367 F.2d 698, 710 (7th Cir. 1966), vacated on other grounds, 387 U.S. 231 (1967). In another case involving extensive pretrial media coverage, the 8th U.S. Circuit Court of Appeals concluded that the publicity did not require change of venue where the trial court took adequate precautions, including expanding the jury pool. U.S. v. Faul, 748 F.2d 1204, 1214 (8th Cir. 1984). Perhaps of greatest importance, trial counsel should urge the court to permit counsel to question jurors directly. Since counsel has needed months to become familiar with the basic facts of the case, let alone the more subtle and complex ones, he can mount a compelling argument that it is impossible to communicate to the court all the information necessary to conduct an effective and meaningful voir dire. Where trial counsel is permitted to question prospective jurors directly after having reviewed their questionnaire responses, he increases the odds substantially of identifying jurors who are biased against his case. This simple but compelling argument has now been adopted by the American Bar Association’s ABA Standards for Criminal Justice: Discovery and Trial by Jury. � 15-2.4(b) (3d ed. 1996). As one federal judge recognized in permitting attorneys to participate directly in voir dire, “it is the parties, rather than the court, who have a full grasp of the nuances and the strengths and weaknesses of the case.” U.S. v. Ible, 630 F.2d 389, 395 (5th Cir. 1980). In making this pitch to the court, trial counsel should represent in clear terms that direct participation by attorneys will not result in unduly long and repetitive voir dire whose purpose is to persuade jurors rather than to pick them � abuses courts have cited in taking over voir dire from attorneys. A request for individual voir dire is another modification to be put to the trial court. In order to prevent tainting of the jury pool, the court should permit counsel to question on an individual basis any juror indicating exposure to press reports regarding the case or related cases that might be a source of prejudice. The court should also be requested to advise prospective jurors that any individual believing public questioning on a topic would be embarrassing may properly request to discuss it in camera provided the discussion is on the record with counsel present. This represents only a limited closing of trial proceedings to the public, including the media, which the Supreme Court suggested was constitutionally permissible more than 20 years ago. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 512 (1984). Request a compressed schedule for trial testimony A final suggestion is that trial counsel may increase the odds of seating a fair and impartial jury by requesting that the court order that testimony in the trial be heard on a compressed schedule between, for example, 8:30 a.m. and 1 p.m., to minimize the burden on jurors in a complex case that could last several months. Such a schedule would permit jurors to serve who might otherwise be unavailable since they would be able to satisfy their other obligations at least partially in the remainder of the day. Because a trial court has wide discretion in setting a trial schedule, counsel should propose a compressed schedule where it would facilitate jury selection. A well known saying around courthouses is that you can’t pick the jury, you can only hope to strike jurors biased against you. Because discerning the biases of prospective jurors in a high-profile case is a significant challenge, trial counsel must seek an active role in voir dire. Unless counsel does so, even the consolation prize of weeding out biased jurors will prove elusive. Dan K. Webb and J. David Reich are partners at Winston & Strawn who concentrate on civil, regulatory and white-collar criminal cases. Webb, the firm’s chairman, previously served as the U.S attorney for the Northern District of Illinois. Reich, based in New York, previously served as an assistant U.S. attorney for the District of New Jersey.

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