(Credit: Rick Kopstein/ALM)
Voir dire, derived from Latin, means “speak the truth.” The purpose of this article is to discuss the current status of voir dire in New Jersey and some strategies for conducting jury selection in the Garden State.
Since State v. Manley, 54 N.J. 259, 281 (1969), was decided nearly 50 years ago, voir dire has been conducted by trial court judges rather than by counsel. Conduct of voir dire was wrested from counsel ostensibly because jury selection was taking too long and lawyers were blatantly attempting to persuade the venire pool from the outset. (The federal courts too have long adopted a practice of the court conducing voir dire.) Despite the limited contact lawyers have with potential jurors during voir dire, there are some strategies for counsel to help select and deselect jurors. Trial practice in many other states does not insulate the jurors from the lawyers, which permits trial counsel full-throated opportunity to question the jurors directly. The National Institute for Trial Advocacy (NITA) and other trial training groups advise that a trial lawyer must persuade the jury venire from the outset, and most importantly during voir dire. Efforts to persuade the jurors before they are sworn in are essentially prohibited under New Jersey and federal practice.
According to New Jersey law, the purpose of voir dire is to probe—not persuade—the minds of the jurors to ascertain whether they are competent, unbiased, and can decide the case fairly and impartially. The court, which must be scrupulously neutral in the jury selection process, will have a clear set of guidelines on the conduct of jury selection, but the court has broad discretion in conducting voir dire. Because counsel is limited in their ability to directly question jurors, how do you effectively make sure that the court asks the right questions of the venire to ferret out the good and bad apples? The best advice I know of is to educate the court as to the core theme of your case, and to work with the judge on developing questions that help frame the issues as you seem. In general, trial court judges in New Jersey are very open to suggestions from trial counsel on what questions they should ask and will often raise those questions directly with the jurors. Know the judge’s practices because the Bench Manual on Jury Selection (available online for free) gives great latitude to the trial court judges in how they conduct voir dire. In framing questions for the court, the general rule is that the questions have to be open-ended, non-biased type questions, because the court is prohibited from telegraphing to the jury the judge’s impression of the issues or the facts.
When facing the venire pool and selecting a jury, your goal is (1) to select those jurors receptive to your theme, and (2) to deselect those that favor your adversary’s position. Conducting a jury focus group can help greatly in figuring out who is more likely to “buy your story.” A second option is to hire a jury consultant, which is typically a sociologist or psychologist type who can help you think through what kinds of jurors are likely to be receptive to (or hostile to) your argument. If your budget is limited, and a focus group or trial consultant is not in the cards, get a friend or assistant to observe the jurors during jury voir dire. You cannot watch all the jurors effectively yourself and it is important to have someone else assist you in watching the reaction of the jurors while one of the venire is being questioned by the court or being excused. If you are in front of the jury and focused upon the potential juror being questioned, you need someone else to write down how many of the other jurors are shaking (or nodding) their heads during that questioning.
Beware of jurors to watch out for. Some are obvious such as those who hate your position or client. The more difficult juror to consider is the juror who is silent and withdrawn—do they want to, really want to, serve (perhaps a little too much?). That should be of concern to all counsel because the person may well have made up their mind as soon as they figured out the issue. Other jurors are those that will be dismissed for cause such as bias or prejudice. Bias comes in two flavors: implied bias (bias by virtue of blood, marriage or employment with a party, for example) and actual bias (a preformed mental belief about the issue). My suggestion is not to fight the removal of any juror who does not want to serve. If they are unhappy about serving, they are likely to be unhappier every day the trial progresses, and a rotten disgruntled apple will make the other jurors unhappy too. It’s difficult to pick out leaders, but jurors can coalesce very quickly, and that’s a concern too because a completely emotionally united jury is going to “follow the leader.”
Is it ethical to research potential jurors? Generally, yes. Just be careful that your research on Facebook, Google, LinkedIn, etc. does not trigger an email to the juror that you are looking at them. You certainly cannot make a “friend request” in order to access their information because this would amount to a blatant ex parte communication with a juror. In short, yes, you can research, but you must leave no foot print and scrupulously must avoid impacting the jury pool.
During the selection process you will typically have six peremptory challenges but bear in mind that you only get to invoke your second peremptory if the other side has invoked one of theirs. Because your peremptory challenges are limited and you may not get to use them, it is worthwhile considering how to articulate and educate the court ahead of time on what jurors ought, in your view, to be removed for cause. New Jersey judges hold a pre-voir dire conference under R. 1:8-3(f) specifically to discuss the issue of voir dire. This conference is a good time to have a short submission with your concerns for the court’s consideration.
Many judges (especially in federal court) request that counsel submit their questions for the venire pool ahead of time. Although this is logical in terms of efficiency, it is also problematic because there are many times when it simply does not appear to even well-prepared counsel what additional questions should be asked until the court starts to discuss the case with the jury venire. For this reason, ask if the court is amenable to a side bar or in-chambers discussion with counsel during jury selection so that you can raise some additional open-ended questions for the court to raise beyond those that you raised in writing in advance.
The mechanics of tracking the venire pool is a prized skill and art. If you are facing a pool of 30 or 40 qualified jurors, how do you keep track of which one worked as a tradesperson, which one had an MBA, and which has a father with lung cancer. There are a number of systems for tracking jurors including iPhone, iPad and computer applications. (Some of the applications are Juror, Juror Connect, Jury Duty and Jury Stat. Personally, I don’t like any of them. I find them non-intuitive and cumbersome, but some lawyers love them.) Some basics are to decide upon a system: (1) use juror number or juror name; (2) decide ahead of time upon a simple color scheme (green = good, red = bad, yellow = need more info); (3) have a chart that captures the biographic information such as occupation, education and residence. Some basic questions that you typically want answered are: (1) attitudes about your case; (2) jury damage awards (size/proportionality); (3) thoughts about lawyers/judges; (4) experience with being a plaintiff or defendant (or victim); (5) jobs they’ve held; and (6) education. This process moves quickly and under pressure because the court wants to keep the process moving so that jurors get removed for cause, are deselected by peremptory challenge or are agreed upon.
Most trial judges will advise the jury venire that if they have unique or personal matters that they do not wish to discuss in front of the other jurors, that they should notify the judge’s staff. There are inevitably a few jurors who wish to be heard. Listen carefully at these times both for what is said and what is not said.
There are of course a number of other strategic considerations in selecting a jury but always consider preserving issues for appeal. If the court has not asked questions in a non-biased fashion or failed to raise questions you believe are critical, document those concerns by placing them on the record during a side-bar with the court. Because of the great deference afforded trial court judges in conducting voir dire, if you fail to document in writing your concerns it is unlikely the appellate court will give your objection fair consideration unless you can point to clear documentation that you objected and the court failed to accommodate your concern.
One last thought is what I call “the parking lot rule.” Assume that a member of the jury venire is watching you from the moment you park to the time you leave. The jurors see everything from what car you drive, bumper stickers you use, how you treat your associate and partners, etc. They are just as interested in you as you are in them. •