Voir Dire can be the most important part of a jury trial.
We understand that in any important jury trial a team of professionals work with the lead litigator and we built our software for the entire team to stay in real-time communication to evaluate each juror to make the best strike decisions.
But how do litigators make these strike decisions?
As you can imagine, opinions vary.
Some argue that voir dire is less about juror selection and more about juror de-selection. That is, the point of a peremptory strike is to remove the jurors that the litigator believes can not be fair or impartial. When both sides remove the jurors who can’t be fair (in their opinion), the jury pool is left with people that both sides believe can be fair and impartial.
Some believe the use of extensive written surveys sent to jurors before they appear in court are the effective and efficient ways to identify jurors who can’t be fair and impartial. But explicitly asking each juror challenging questions about every aspect of the case, jurors will disclose any disqualifying opinion, relationship or background experience and not rely on fast-paced oral questions in court.
These surveys can be very extensive in high-profile cases. Often litigators will manage a large pile of paper surveys, shuffling through to find the juror being questioned by opposing counsel and scribbling notes on the margins. That’s why we have a survey feature in JurorSearch so all survey questions and answers are incorporated into each Juror Profile.
One important strategy is to maximize the use of cause challenges to remove jurors who would otherwise take one of the limited peremptory strikes. If a clever litigator can get a potential juror to admit that he or she simply can not be fair or impartial in this case under questioning, the judge will often strike the juror for cause, allowing the litigator to save a peremptory strike for later in the process.
Similarly, a juror that is almost certainly bad for a litigator’s client who has legitimate personal challenges that could prevent service on a jury would be a great candidate for a hardship strike — another type of strike that is unlimited in number.
The more that court staff can surface these objections before jurors have to show up in person in court, the better for everyone. That’s another reason for extensive written surveys (distributed to potential jurors and the attorneys before they appear in person).
Peremptory strikes can not be used to discriminate against jurors for their race or gender. The Batson decision by the United States Supreme Court created this law and gave rise to Batson challenges (and even Batson reconstruction hearings years later) to ensure peremptory strikes are free of any racial or gender discrimination.
To help ensure a bias-free voir dire, JurorSearch helps both sides keep track of the racial composition of every peremptory strike by side with constantly-updated statistics to show whether either side is disproportionately striking jurors from one race. We also allow litigators to enter in their reason for each peremptory strike so that if a Batson challenge surfaces months or years after the case, the litigator has a clean, clear record why he or she chose to strike that juror.
Some states are moving to eliminate peremptory strikes altogether, finding too many cases with a racially discriminatory impact, especially in criminal cases. Arizona is the only state to completely abolish peremptory strikes (as of January 1, 2021) by order of their Supreme Court. California recently severely restricted the use of peremptory strikes with recent legislation (AB3070) that renders a peremptory strike invalid if they are at all motivated by any racial identification.
Free Voir Dire Resources
Law Review Article: Jury Selection in Illinois
Jury Selection in Criminal Cases: Illinois Supreme Court Rule 431 by Michael Toomin, DePaul Law Review, Fall 1998
Law Review Article: A New Approach to Voir Dire on Racial Bias:
A New Approach to Voir Dire on Racial Bias by Cynthia Lee, UC Irvine Law Review, Volume 5
ABA Article on Virtual Criminal Jury Trials
The Practical and Constitutional Issues with Virtual Jury Trials in Criminal Cases, Phillip Hamilton, American Bar Association, February 26, 2021
Book by a law professor on the benefits of juries (civil, criminal and grand) with constitutional and historical analysis
2021 New Jersey Supreme Court case granting defendant a new trial based on State’s voir dire questions that were not impartial or balanced
Law review article about a survey of 1400 judges and attorneys for why there has been such a decline in jury trials in both civil and criminal cases
Reasons for the Disappearing Jury Trial: Perspectives from Judges and Attorneys, Shari Seidman Diamond and Jessica M. Salerno, Louisiana Law Review, Fall 2020The Missing American Jury by Prof Suja Thomas
First Circuit opinion with 50 pages of discussion on content specific questions and juror surveys in the Boston Marathon case
Attorney arguing against mandatory online jury trials
The Case Against Mandatory Online Jury Trials in the Time of Corona, Quentin Brogdon, Texas Bar Journal
Well-researched 2020 article by Colorado Assistant Attorney General on Batson’s three-part test for peremptory strikes and legislative efforts for improvements
The Evolving Debate Over Batson’s Procedures for Peremptory Challenges, Daniel Edwards, National Association of Attorneys General, 2020
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