Wednesday, September 5, 2007

In Voir Dire, Listen With Great Care

Still Seizing The Jury's Answers

Yesterday, Attorney Anne Reed posted in her BLOG:

September 04, 2007
Back To Basics: Nine Things To Look For In Voir Dire

Summer's over. It's time to refocus, and if the recent search traffic here is any indication, it's time to get ready for trial. Judges are back on the bench today, and a lot of this blog's readers spent some time yesterday researching their voir dire questions.

Which brings up a question I'm asked often. We're getting an idea of what voir dire questions to ask, readers tell me, but what do we do with the answers? We know we're supposed to get jurors talking and then listen, but what are we listening for?

I've been pretty clear about what I'm usually not listening for in voir dire. I set very little store by demographics, and I don't trust bias questions to bring out jurors' secret or unconscious biases. But I do have a list of the main things I'm listening for, the things I'm usually trying to figure out in voir dire. I use it both as a checklist to develop questions, and as a reminder of what I'm looking for as I listen. I keep tinkering with this list, but here's the version I'm using right now." Read her BLOG at: Deliberations - Back To Basics

Third Jury This Year, Second In A Felony Child Sexual Assault Trial ~ Still Seizing The Jury's Answers


Yesterday I picked my third jury of the year, and my second in a felony child sexual assault trial. Two experiences in yesterday’s voir dire reminded me of the critical importance to the DEFENSE of seizing voir dire answers and getting a major point across.

20 years ago, as a young state prosecutor in Trenton, New Jersey, I recall plea negotiating with ace NJ Public Defender Mike McConnell (who could sell air conditioning north of the Artic Circle) in a child sexual assault case. As he outlined his client’s claims of innocence, I responded that his guy ought to go to trial, if he did not do it (which, by the way, is precisely what I tell all my felony sex assault clients in today’s climate). He responded in words that had no real meaning for me as a “wet behind the ears” prosecutor, but ring so true in my current work. “Hey, Chris, you could try this case drunk. All ya gotta do [hey, this WAS Jersey, friend!) is put the baby on the stand and say her name and you will have every single juror ready to perform the castration on the spot! I can’t go to trial in this kind of case, Chris!”

Well, Mike Mac’s words came back to me last night, when I reflected on a spotlight moment yesterday in my latest voir dire effort. When the judge asked the potential jurors if the charges themselves would make it difficult for anyone to be fair and impartial, a woman raised her hand and said, “With these charges, I know he’s guilty already. I will find him guilty. He would have to prove his innocence to me, but I don’t think he can because of the fact of what he did.” Ouch.

She was excused, naturally, and before any attorney asked. The ADA, no doubt, was pleased. Then she – the prosecutor - gave me the answer I needed, in her own voir dire of the jurors. She used the phrase “in light of what the defendant did to these girls” as if the matter were a foregone conclusion. Double ouch?

Not at all.

Twenty minutes later, when the voir dire baton was passed to me, I seized upon the prosecutor’s ill-advised choice of words, and asked if any juror had heard her say what I had heard her say. An older, articulate female juror in the very front row – less than 5 feet from me – raised her hand and said she had heard that very phrase. I then honed in ad asked her how she felt about the phrase – even though for lots of reasons I knew I’d probably strike her if the AD did not.

She said: “I was very troubled and offended. I thought that the defendant was presumed innocent, and that it was OUR job to decide if he did anything to the girls. I found it uncomfortable that the DA was talking as if she KNEW he was guilty, and as if there were no presumption of innocence.”

[CVW to self: “Nice.”]

I then asked if anyone else had any other reaction or the same reaction to the DA’s ill-advised words. Half the hands in the box went up.

[CVW to self: “Very nice.”]

Then, just as another juror started speaking out about the same concerns, the prosecutor stood up and said that she thought she had said “what the defendant had allegedly done to the victims.”

CVW to jury venire: “That was not what I wrote down as a quote…

And then, I went right back to the “he’s guilty as sin” juror answer – with her long gone from the courtroom, asking they jury venire if they had heard HER answers. And if they had any reaction to HER views – i.e., “Fry the SOB!” The jurors then discussed for 10 full minutes – in their own words and with only a little prodding from me – the meaning and importance of the presumption of innocence AND the burden of proof beyond a reasonable doubt. The prosecutor – after 10 minutes of this GREAT defense stuff – finally started objecting to the “discussion” – another point scored for the defense voir dire, since the jury liked the discussion and the DA tried to stop it.

Today’s lesson, reinforced: in voir dire, listen with great care to the BAD things jurors – and the DA– are saying, and discuss them openly with the rest of the panel. It can only help the cause. Mike McConnell’s viewpoint notwithstanding … although he won too often for my then-prosecutor’s tastes."


Helpful information:
Criminal Trial Proceedings
10 Rules For Jurors