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Most jury consultants agree that voir dire is the trickiest part of a trial, for many reasons. First, it’s tricky because the seated jury will ultimately decide the outcome of the case (even though the judge sets strict parameters on that decision). Second, jurors’ behaviors are difficult to understand and predict within the limits placed on voir dire. Third, the communication process involves interviewing, assessing, charming and persuading jurors to disclose personal information to strangers and, sometimes, even deliberately attempting to get jurors to disqualify themselves. That is why so many attorneys want to understand the secrets of the process and of the jurors. As remote trials become a more frequent reality and attorneys cannot interview jurors in person, how will this work? How can you conduct the questioning with only a video screen looking back at you? How can voir dire and the jury selection process best be conducted effectively in this new medium? Having seen remote voir dire, I can say that it is possible to select a jury in this way and to succeed at it. Here are a few reminders about what you are really trying to accomplish in voir dire and why the most important goals are still able to be achieved in a remote setting.
First, a caveat: How much information you get depends on the court
The voir dire process varies significantly from court to court and these differences make it difficult to talk about how a remote setting will differ from the courtroom in a comprehensive way. Some courts allow for lengthy questioning, some for individual questioning and some for lengthy individual questioning (has anyone been in Texas or Connecticut where the process can take days?). Some voir dire takes place in a couple of hours or, as the judges proudly say, “we’ll have a jury by lunch.” And they say that proudly because in those courts, the point is to simply ensure that there are jurors in the jury box when the trial commences, not to vet them thoroughly. Similarly, the “strike” process can vary, too, from using cause strikes and/or peremptory strikes immediately after questioning individual jurors, to exercising strikes at the end of the questioning of the entire panel, to allowing “back strikes” which involves striking previously seated jurors. Since this process varies so widely, from state to state, from county to county, from Federal to State Court, and even among judges within the same courthouse, we will offer general considerations about how voir dire conducted remotely will differ from in-person voir dire.
Voir dire is not the only source of information about jurors
Jurors often fill out a questionnaire from the state or federal government that provides minimal information about them; depending on the circumstances, jury consultants and attorneys are sometimes permitted to provide case-specific Supplemental Jury Questionnaires that jurors fill out in advance of jury selection. This information will inform the questioning and is often used to begin to screen for hardships (for example, caregiver issues or medical problems that would preclude sitting as a juror). They are also especially helpful in identifying jurors who should be struck for cause; for example, they know one of the parties personally, they have strong feelings about the type of case, or say that they cannot follow the law. Ideally, these questionnaires also ask about relevant attitudes, experiences and even types of media the juror follows. These questionnaires prompt live questioning that will inform peremptory strikes.
Social media is part of the process
The jury selection process is now more likely to include conducting some social media research of potential jurors before and/or during the jury selection process, the results of which can influence the voir dire process. Online voir dire generally requires getting the list of jurors in advance, either that morning (not optimal) to a few days in advance (much more optimal for searching). Jurors are searched on Google, Facebook, Instagram, Twitter and other sources such as Westlaw and local court records for information that is relevant to their attitudes and experiences before jury selection. This knowledge gained pre-voir dire is used to make initial decisions about who to strike or to keep based on possible predispositions toward the case. This information is more useful in developing first impressions and not final decisions, however, since jurors will often post information about themselves that is not censored, there is a lot to glean from personal posts that are offered freely in the public domain. Thus, there are sources of information that contribute to attorneys’ impressions during voir dire (in person or remote).
The most important thing to remember: Jury selection is de-selection
Though the most frequent question attorneys ask me is “Who do I want?” the most important question is, “Who don’t I want?” Jury selection is “de-selection;” that is, the most important goal in jury selection is to eliminate your worst jurors, so voir dire should focus on getting information that will help you to do that. The second most important goal is assessing leadership potential – who are the leaders going to be versus who will go with the flow? There are other goals, of course: rolling out themes, creating an impression for the jury, and even creating a “connection” with potential jurors that will last into trial. Some attorneys worry that remote voir dire will impair their ability to make connections with jurors when they are not in the same room, and they also worry about jurors’ abilities to maintain attention and focus on the process when at home as opposed to in the courtroom. Although these concerns have some validity, we believe they are far less important than the goal of getting jurors to give answers to questions that would reveal that they are biased about your case.
What attorneys want to gain from voir dire:
Thus, with these kinds of motives, a jurors’ non-verbal and verbal behavior is suspect. What does it mean if they are terribly attentive? Bored and dismayed? Or answer every question that is posed to the group? This is an artificial situation and should be regarded as such whether the experience is in-person or remote.
What will be different in a remote voir dire situation?
There is not one version of remote voir dire at this point. As noted at the beginning of this blog , there may be combinations of remote and in-person (socially distanced) voir dire. Some judges, court personnel and attorneys may be in the courtroom, In the following description of what it might look like, jurors are in their homes, and the court officers and attorneys are all remote.
Given the above, here is a summary of hints:
Manage the logistics and technology effectively
Clearly, the biggest impediment to a good remote voir dire session is the technology. It is about time courthouses address antiquated courtroom technology and obviously the technology the jurors have is essential to evaluate. One key is a great deal of pre-voir dire testing to make sure that the jurors have the right equipment and internet connections (and that goes for the court and lawyers as well if the process is entirely remote.) Some courts are providing hotspots and laptops or tablets to jurors with inadequate broadband or devices. Make sure that there are multiple ways to contact the potential jurors (cell phone numbers, for example, for jurors in case of dropping off). Also make sure that the jurors know precisely when to log in and when breaks are to end so as to not inconvenience their fellow jurors — they are much more responsive to peer pressure than you think. The kinds of early mishaps reported can be managed and are the same kinds of delays which happen in the courthouse when jurors do not return promptly from lunch or breaks.
Manage attention spans
Remember the last jury selection you did — was every juror attentive? Probably not, and based on the descriptions offered above, there are reasons they are not all equally engaged. However, you can lay out the requirements for reasonable level of attention by limiting phone or other electronic use, instructing them to turn off TVs, limiting access by others (and pets) to their room. Take frequent breaks so jurors can refresh themselves. Jurors should know how to use remote platform, Zoom, including how to mute and unmute themselves . It is best to require that they always leave their cameras on and go off video only on specified breaks. These kinds of rules up front, communicated by court personnel who emphasize the seriousness of the process (added to the typical cautions like not using your phone for independent investigations) will ensure that most jurors are paying attention. Remind them they can be seen at all times!
Remember that getting jurors to answer is most important
You get to be you but, even more importantly, they get them to be themselves. The jurors in a remote setting may actually be more forthcoming than they would be if in person at trial. There is a certain safety in opening up in your own home and not in an impressive government building, not next to a person with whom you totally disagree, or face-to-face with a lawyer who is aggressively asking questions. Similar to in-person voir dire, encourage honesty over saying what they think you want to hear, and avoid asking if they can be impartial or fair. After hearing the description of the case, ask potential jurors if one party or the other has any advantage at all in their mind. Use open-ended questions rather than questions that elicit a simple yes or no when allowed, unless you are trying to select a certain group for questioning. Ask the judge if you can ask questions both to the whole group, with individual follow-up. There are many techniques for questioning that may help you to elicit more honest answers.
Watch for jurors’ facial expressions
Seeing jurors on video, up close and personal, actually makes viewing jurors’ faces easier. As many authors have suggested, it is possible to get better at detecting micro-expressions or interpreting gestures through reading about these phenomena and practicing watching people — either on zoom calls or just watching people on television (Lerner, 2020). Further, it is important to utilize the view function of Zoom, such that you can move to a single frame of the juror speaking (while others on your team my choose to watch the entire group). Remember jurors do have various rationales for their looks and may be trying to persuade you while you are persuading them. Realize that the disadvantage of an in-person trial in most courts, for the foreseeable future, is that jurors (and just about everyone else with the exception of witnesses behind plexiglass) will have masks on and you will only see their eyes.
Be energetic
You can be a dynamic speaker on video. Remember to look at the camera as the ONLY person in the room. Speak to the screen and act as if you are in the same room. No one I know has seen Martin Luther King or John Kennedy in person, but they remember their speeches. Yes, they were looking at real people, but you will be looking at real people, too—just on the other side of your screen. Further, jurors will remember your questions more than anything that day—they are too nervous to take in all the details. Make sure the questions are asked in a polite, open way, consider explaining why you need to ask all these questions and do not badger or belittle in any way. Know which attitudes are better and worse for you and find ways to explore those experiences and attitudes with the jurors.
Concluding Reality
In one recent trial in Alameda County, the defense tried to overturn an unfavorable verdict by opining that the remote jury selection was “riddled with various problems” such as jurors using other electronic devices and lounging on beds or sofas. In response, the opposing attorney said, “The jury is engaged, there have been only a few minor technical glitches and there has been nothing to indicate that the parties will not receive a fair trial. The parade of ‘horribles’ that defendants claimed would occur if trials proceeded have not materialized, and their due process rights have not been infringed.”
From our online mock trial experiences, we know that jurors are paying attention to online proceedings, even if they don’t always look like they are, and this is very much what real jurors look like in the actual jury box. As we adapt to a new system, some of these problems can be handled by providing structure, such as telling jurors what you need from them and gently correcting them if they are not following the rules. Glitches are not unique to online voir dire; they happened every week in courtrooms around the country before this pandemic. The fact is that we now know virtual voir dire is not only possible, but it can be quite similar to in-person voir dire if we give it a chance.
References
Lerner, I.E. Effective voir dire in a virtual world. Law.com, November 5, 2020.
Norris, R. 5 Tips for overcoming online jury selection challenges.Law360.com October 22, 2020
https://www.law360.com/articles/1321800/5-tips-for-overcoming-online-jury-selection-challenges
https://www.floridabar.org/the-florida-bar-news/remote-jury-selection-during-a-pandemic/
Get to know Ann T. Greeley, Ph.D.
Content published on the U.S. Legal Support blog is reviewed by professionals in the legal and litigation support services field to help ensure accurate information. The information provided in this blog is for informational purposes only and should not be construed as legal advice for attorneys or clients.