Getting Started- Voir Dire and Jury Selection in a Criminal Trial

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I. Preparing for voir dire

A. Introduction

The legal justifications for voir dire are to determine whether grounds exist for challenges for cause, and to obtain information for the exercise of peremptory challenges.  State v. Clark, 981 S.W.2d 143 (Mo. 1998).  As a practical matter, voir dire is equally important for beginning to educate the jurors about your case, preparing them for anything you do not want them shocked by later in the case, and perhaps even beginning to argue your case.  Being successful at voir dire is no different than any other part of a trial. There is no magic, no smoke and mirrors, only hard work and preparation. 

B. Mechanics

Jury selection necessarily entails devising some system for keeping notes in an organized manner for ready reference during the selection process.  Since the mechanics of jury selection vary based upon local procedures and individual judges, the system may need to be modified from jurisdiction to jurisdiction. 

Many courts provide counsel with a seating diagram, and counsel should make one if a particular court does not.  Generally, these diagrams are not large enough to take effective notes, but are useful for writing in jurors’ names and numbers so that counsel can more easily refer to them by name during the voir dire process.  Counsel may also include other brief identifying information (such as gender, if not obvious from the name, or “red dress”) to assist in remembering potential jurors during the selection process, or to describe them to co-counsel or the client. 

A simple but effective method for keeping notes is to divide a legal pad into a table with two columns and four rows.  Number the individual cells, and then create enough pages to have one cell for each juror.  This system provides ample room for run-of-the-mill trials.  A trial with more complex voir dire, such as a death penalty case, would obviously require a more extensive system, such as a notebook with one or more pages per juror.

 Client involvement in jury selection may be helpful, but clients should be instructed not to attempt to talk with counsel during the voir dire process.  Verbal communication can be distracting to counsel and, perhaps more importantly, may appear rude to the jury.  Provide the client with a note pad or table, as described above, and advise the client that you will have a full opportunity to discuss his or her input during the selection phase.  “Passing notes” can appear just as rude as talking during the voir dire process.

B. Factual preparation

The only way to know what needs to be addressed with the jury about is to know the case intimately.  That includes reading all reports, talking to or deposing key witnesses and knowing as much as possible about the client.  In addition to general facts of the case, look for distasteful items that the jury should not hear for the first time during opening statement, or even witness examination. Is there a key witness with a drug problem?  Is there a witness (or your client) with a criminal history?  Does the case involve immoral conduct, apart from the alleged illegal conduct, which will likely be in evidence?  In any case which is likely to go to trial, counsel may wish to create a voir dire early on to collect notes made throughout the trial preparation process.

C. Legal Preparation

In general, the trial court has broad discretion in conducting voir dire.  Its rulings will be reversed only upon a showing of abuse of discretion and that prejudice resulted from that abuse.  State v. Oates, 12 S.W.3d 307, 310-11 (Mo. banc 2000). 

The following are ineligible for jury service:

(1) Any person who is less than twenty-one years of age;

(2) Any person not a citizen of the United States;

(3) Any person not a resident of the county or city not within a county served by the court issuing the summons;

(4) Any person who has been convicted of a felony, unless such person has been restored to his civil rights;

(5) Any person unable to read, speak and understand the English language, unless such person's inability is due to a vision or hearing impairment which can be adequately compensated for through the use of auxiliary aids or services;

(6) Any person on active duty in the armed forces of the United States or any member of the organized militia on active duty under order of the governor;

(7) Any judge of a court of record;

(8) Any person who, in the judgment of the court, is incapable of performing the duties of a juror because of mental or physical illness or infirmity. The juror or the juror's personal representative, may provide the court with documentation from a physician licensed to practice medicine verifying that a mental or physical condition renders the person unfit for jury service for a period of up to twenty-four months.

§ 494.425, R.S.Mo.  Most of the statutory qualifications can be verified by jury questionnaires, and questioning the panel regarding them will only serve to delay the process, and potentially irritate the panel.

The following persons may be excused from service upon application to the court:

(1) Any person who has served on a state or federal petit or grand jury within the preceding two years;

(2) Any person whose absence from his or her regular place of employment would, in the judgment of the court, tend materially and adversely to affect the public safety, health, welfare or interest;

(3) Any person upon whom service as a juror would in the judgment of the court impose an undue or extreme physical or financial hardship;

(4) Any person licensed as a health care provider as such term is defined in section 538.205, RSMo, but only if such person provides a written statement to the court certifying that he or she is actually providing health care services to patients, and that the person's service as a juror would be detrimental to the health of the person's patients;

(5) Any employee of a religious institution whose religious obligations or constraints prohibit their serving on a jury. The certification of the employment and obligation or constraint may be provided by the employee's religious supervisor.

§ 494.430, R.S.Mo.  To the extent a trial judge seeks input on requests to be excused for hardship, counsel should be cautioned that a defendant rarely benefits from keeping a person on the panel who really does not want to be there.

Since the constitutional right to jury trial includes the right to a jury with open minds, counsel should generally be allowed wide latitude in questioning a panel to expose potential bias.  State v. Brown, 547 S.W.2d 797, 799 (Mo. banc 1977).  While counsel is not entitled to engage in detailed factual discussions, inquiry regarding critical facts is necessary and appropriate to exploration of bias.  State v. Clark, 981 S.W.2d 143 (Mo. 1998); State v. Ezell, 233 S.W.3d 251 (Mo. App. 2007).

 Effective voir dire requires examining the panel regarding its willingness to follow the law with respect to potential legal defenses and the basic legal rights of the accused, even when potential jurors may disagree personally with those defenses or rights.  State v. Brown, 547 S.W.2d 797, 799 (Mo. banc 1977) (ability to question regarding law of self defense).  While questions about legal issues are probably the most likely to draw objections, such questions are clearly appropriate if done properly.  The format has long been established: 

The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly….

State v. Mosier, 102 S.W.2d 620, 624 (Mo. 1937); Ashcroft v. TAD Resources Intern., 972 S.W.2d 502, 506 (Mo. App. 1998).  Framing the question in the exact language of applicable instructions or case law, with copies handy for Court review, will encourage favorable rulings.

II. CONDUCTING VOIR DIRE

A. General

Voir dire is universally viewed as an extremely important aspect of trial.  At one extreme, failure to conduct adequate voir dire can result in ineffective assistance of counsel and reversal of a conviction.  Knese v. State, 85 S.W.3d 628, 632-33 (Mo. banc 2002). At the other extreme, volumes have been written about the art and science of conducting voir dire to the ends of not only selecting an unbiased jury, but to also begin trying the case and persuading the jury.  While those topics are beyond the scope of this presentation, Judge Dierker of the City of St. Louis suggests the following “Do’s and Don’ts:”

a. Trial counsel should always try to address the veniremen by name, rather than number. This helps the court reporter and, more importantly, establishes the veniremen as real personalities with important roles to play. (Some veniremen may be skittish about the use of names in open court, especially in gang-related situations. Some judges advocate use only of juror numbers, but this seems unnecessarily sterile in the absence of a demonstrable risk to jurors' safety.)

b. Trial counsel should never argue with a venireman, and, if possible, should politely attempt to cut off any speechmaking by veniremen.

c. Trial counsel should rarely, if ever, inquire into the basis for a venireman's personal or religious beliefs.

d. Leading questions are allowed and encouraged; questions seeking narrative responses, especially on abstract issues, are discouraged.

e. Don't run a topic into the ground. If the venireman has steadfastly refused to be pinned down, drop the issue and leave it to the court to clear it up, if need be. Often, equivocal responses will themselves be sufficient for a challenge for cause.

f. When prospective jurors have effectively disqualified themselves in some particular, as by indicating inability to follow instructions regarding the defendant's right not to testify, it is unwise of counsel to ask lengthy follow-up questions on that topic, directed to the general venire. In some cases, such questions can be construed as rehabilitating some or all of the veniremen who seemed to have disqualified themselves. Edgar v. State, 145 S.W.3d 458 (Mo. Ct. App. W.D. 2004) (follow-up questions by defense counsel that rehabilitated veniremen did not constitute ineffective assistance).

28 Mo. Practice § 19.8.

B. Objections

Counsel should be generally reluctant to object during voir dire because such objections are rarely sustained and potential jurors may view objections as an attempt to hide information, or as being obstructive.  If, however, the State makes inaccurate statements of law which could adversely affect the defendant, an objection should be made promptly.  If the Court sustains the objection, the defendant may be entitled to a curative instruction which would re-enforce his position.  If not successful, the objection is required to preserve the record, as even comments on a defendant’s failure to testify may not be deemed plain error.  See State v. Barnum, 14 S.W.3d 587 (Mo. banc 2000); State v. Collins, 42 S.W.3d 736 (Mo. App. 2001).

C. Sample Questions

Sample voir dire questions/subject areas are attached as Appendix A.  In developing questions for a particular case, counsel should carefully reflect upon the facts and issues in the case and include questions on any area that might be likely to illicit bias or preconceived notions from potential jurors.  Prepared lists are forms are helpful, but not a substitute for individualized preparation.

III. EVALUATING POTENTIAL JURORS

Evaluating potential jurors is more art than science, and will vary extensively based upon the facts of the case.  Ideal jurors for a simple drug possession case will be quite different from ideal jurors for a shaken baby case, which might involve extensive expert medical testimony.  Once again, a thorough understanding of the case and evidence which will be presented is vital to an effective evaluation process.

Volumes have been written on evaluating jurors, and consultants with varying qualifications who do nothing but evaluate jurors are available for hire.  Stereotypes are frequently quoted, but notoriously unreliable.  I have had empty-nest mothers argue for maximum sentences on a youthful defendant charged with first-time drug possession and, in a civil context, a black male lead the jury towards a defense verdict in a white on black police brutality case.

The best choices are made with the most information, which can only be obtained through extensive and, to the extent possible, individual questioning.  Client input is also valuable.  A jury of one’s peers may in fact be the most fair, and a client’s good- or bad- feelings towards jurors may be mutual.

 IV. JURY SELECTION

At the conclusion voir dire, the panel is generally excused, and the parties are given the opportunity to make challenges for cause.  The bases and procedures for making challenges for cause are set forth in § 494.470, R.S.Mo.:

Challenges for cause, grounds for--juror on panel not summoned off as a witness, exception

1. No witness or person summoned as a witness in any cause, no person who has formed or expressed an opinion concerning the matter or any material fact in controversy in any case that may influence the judgment of such person, and no person who is kin to either party in a civil case or to the injured party, accused, or prosecuting or circuit attorney in a criminal case within the fourth degree of consanguinity or affinity shall be sworn as a juror in the same cause.

2. Persons whose opinions or beliefs preclude them from following the law as declared by the court in its instructions are ineligible to serve as jurors on that case.

3. All challenges for cause may be tried by the court on the oath of the person challenged or on other evidence and such challenges shall be made before the juror is sworn. If the cause of challenge be discovered after the juror is sworn and before any part of the evidence is delivered, the juror may be discharged or not in the discretion of the court.

 4. A prospective juror may be challenged for cause for any reason mentioned in this section and also for any causes authorized by the law.

 In a more general sense, Missouri courts hold that a venireperson must be able to enter upon that service with open mind, free from bias and prejudice State v. Ervin, 835 S.W.2d 905 (Mo. 1992), cert. denied, 507 U.S. 954 (1993).  Judge Knox presents an extensive review of decisions addressing challenges for cause in various factual situations at 19 Missouri Practice § 21:12.

            By statute, there can be no reversible error in failing to grant a challenge for cause unless the juror actually serves.  § 494.480.4, R.S.Mo.  Trial courts are granted broad discretion in ruling challenges for cause, and that discretion will not be disturbed on appeal unless clearly abused.  State v. Treadway, 558 S.W.2d 646, 649 (Mo. banc 1977), cert. denied, 439 U.S. 838 (1978).  Counsel will therefore generally exercise a peremptory challenge to excuse a potentially adverse panel member when the Court denies a challenge for cause because relief in the Court of Appeals is, at best, speculative.

            In death penalty cases, the state and defense each have a right to nine peremptory challenges.  § 494.480.2(1), R.S.Mo.  Each party is entitled to six peremptory challenges in cases where the offense charged is punishable by imprisonment in the penitentiary, and two where the offense charged is not punishable by imprisonment in the penitentiary.  §§ 494.480.2(2 & 3), R.S.Mo.  When multiple defendants are tried together, each defendant receives the number of challenges he or she would have been entitled to if tried individually, and the state is entitled to the number of challenges granted to all of the defendants combined.  § 494.480.3, R.S.Mo.  The state is required to exercise its peremptory challenges before the defendants.  § 494.480.4, R.S.Mo.

Any objections to the jury, including peremptory challenges, must be raised before the jury is sworn. State v. Parker, 836 S.W.2d 930 (Mo. 1992).  Peremptory challenges based on race or sex are forbidden by the Fourteenth Amendment.  Batson v. Kentucky, 476 U.S. 79 (1986) (race discrimination); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (sex discrimination).  A defendant need not be of the same race or sex of the person stricken to challenge the strike.  Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991).

 

Appendix A

 

Sample Voir Dire / Subject Areas

 

I.                    Introductions

 

 

A.                 Myself

B.                 Firm

C.                 Client

D.                Our Witnesses (if any witnesses are family members, explain that “The Rule” may be invoked, so family members will not be in the courtroom to support the defendant like they might want to be).

E.                  Prosecutor / Prosecutor’s Staff

F.                  State’s Witnesses

 

II.                 Purpose of voir dire [Speech]

 

A.                   General purpose is to pick fair and impartial jury.

B.                   We all have preconceived notions and beliefs- normal, nothing wrong with that. Lawyers job on voir dire to make sure you have no particular preconceived notions or beliefs which you couldn’t set aside, which might interfere with your ability to decide this case based soley on the evidence you hear in the courtroom, or to apply the law as the judge gives it to you. In order to do my job, will ask some personal questions.

C.                   Judge will give you opportunity to answer at bench.

D.                  Hope you won’t hold it against my client that I have to ask some of those questions to do my job.

 

III.               Nature of Crime (using example of child abuse crime) / Experience with Crime

 

A.                 That part about personal questions is particularly true in this case, because it involves allegations of child abuse.  That is an emotional topic, and we want to make sure that emotions don’t interfere with reason.

B.                 Get the most personal part over with first-  I’m going to ask about victims of child abuse, but before I do, I’ll give you a couple of definitions to try to explain what I’m asking abuse.

 

1.                  By “child abuse,” I don’t mean when I got spanked with a belt in the 60s

2.                  Also, I’m not asking about sexual child abuse.  I know that involves a whole other level of emotional scars, and no claim whatsoever of sexual type abuse in this cases- so I’m just not going to put anybody through the potential pain or embarrassment of talking about that.

3.                  Finally, with this question, and several others throughout this process, I’ll be asking about you, or anyone close to you.  There is no black and white definition of the phrase “anyone close to you”.  Events can impact you in a variety of ways.  On one end of the spectrum an event can happen directly to you.  On the other end, there might something you read in the paper that happened to someone you never heard of, maybe hundreds of miles away.  Somewhere in between there is a point where something hits close to home- and I’m letting you make that call.  It’s not important for purposes of these questions whether that person was actually a family member of yours, or maybe someone who was close enough you think of them as family, or maybe just someone you knew well or felt close to.  The important part is if, for whatever reasons, you feel like something was close enough to home that it had a substantially greater impact on you personally than simply the events of the day, or something you may have read or heard about.

 

C.                 Having said all of that- Have any of you, or anyone close to you, been the victim of child abuse?

D.                With those same general definitions- Have any of you, or anyone close to you, been accused of child abuse?

E.                  Have any of you, or anyone close to you, been victims of crime in general?

F.                  Have any of you, or anyone close to you, been witnesses to a crime?

G.                Have any of you, or anyone close to you, had to testify regarding a crime?

H.                Witness characteristics which might have impact on ability to perceive or relate testimony, such as youth, drugs, mental disorders.  (E.g. “Have any of you had experience dealing with a 7 year old an attempting to determine whether they are telling the truth, or whether someone else may have influenced their perception or testimony?”)

I.                    Testimony by deposition

J.                    Other “special” witness issues, such as doctors, psychiatrists, or other experts.

 

IV.           Law Enforcement Questions

 

A.                 Have any of you, or someone close to you, had experience, training or employment in law enforcement?

B.                 Have any of you, or someone close to you, had experience, training or employment in criminal justice.

C.                 Have any of you, or someone close to you, had experience, training or employment in any role than involved investigation of real or suspected child abuse?

D.                Would any of you be more likely to believe a person, or find a person’s testimony credible, just because that person is a police officer or a government official?

 

V.                 Knowledge / Facts of Case (Using “shaken baby” charge example)

 

A.                 This isn’t my opportunity to tell you about the evidence or argue the case, but you’ll need to know, and are entitled to know, just a little about the facts so that my next few questions will make sense.

B.                 Give fair an unbiased statement of facts of case

1.                  Parties in agreement that victim sustained catastrophic injuries

2.                  Defense says baby fell

3.                  Prosecutor says “shaken baby” theory (no witnesses will say they saw that- prosecutor’s theory)

4.                  Experience with falls / injuries caused by falls?

5.                  Experience with / knowledge of injuries caused by shaking

6.                  Experience with / knowledge of “shaken baby syndrome”

VI.       Procedural Matters / Rights

A.                 Switch gears and talk about procedural matters. As the Judge told you earlier, the state has the burden of proving [Defendant] guilty beyond a reasonable doubt.  The corollary to that is that [Defendant] is not required to prove, or convince you, of anything.  Do any of you have a problem with that concept?

B.                 The judge defined “beyond a reasonable doubt” and it’s improper for me to paraphrase or attempt to restate that.  What I would like to do is briefly discuss the ramifications with you.  This is not a civil case where a jury decides facts based on a preponderance of the evidence- that is, in a civil case, the jury decides whether the necessary facts are more likely true than not true.  Since this is a criminal case, there could be a situation where you could honestly say that you believed a defendant did, more likely than not, commit a crime, but you were not convinced beyond a reasonable doubt.  In that situation, you would be required, under the law to return a verdict of not guilty.  Would any of you have any difficulty following the law in that respect?

C.                 These are questions I ask in every criminal trial, and by asking them I certainly don’t mean to imply that Mr. __ may be guilty, or even that it is a close call.  I simply want to know if, at the close of the evidence, and for whatever reason, guilt becomes a close call in your mind, would you be able to follow the law as the court instructs you regarding the burden of proof.  Is there anyone who would not be able to follow the law in that respect?

D.                A topic related to the burden of proof, or perhaps even another way of saying that the government has the burden of proof, is to say that the defendant is presumed innocent.  Does anyone have any problem, as you sit here right now, engaging in a presumption that Mr. ___ is innocent?

E.                  Is anyone not willing to presume that Mr. ___ is innocent?

F.                  Under the law, the fact that Mr. ___ has been charged with a crime, and the fact that he is here exercising his right to a trial, is not evidence of anything.  Does anybody here think that Mr. ___ is more likely guilty of a crime than anyone else you may see walking down the street simply because he has been charged with a crime, or is here on trial?

G.                Let’s take that a step further.  As we all know, a defendant in a criminal trial has the right, under the United States Constitution, to not to testify.  For a variety of reasons lawyers may advise clients to rely on the presumption of innocence and not testify at trial- and that could happen in this case.  If that were to happen in this case- if Mr. ___ does not testify- would any of you think that, because of him not testifying, he is more likely guilty?

H.                We’ve all heard a lot about the problems of crime, and being tough on crime, and obviously none of us like crime.  We’ve all also heard comments about legal “technicalities.”  I’m not sure what people mean by that, but I can tell you the presumption of innocence, the burden of proof, the requirement of proof beyond a reasonable doubt are fundamental constitutional rights of every citizen in this country, just like freedom of speech and freedom of religion.  Does anybody think of these rights as technicalities, that you might be willing to compromise under some circumstances?

I.                    There are a lot of government employees in the courtroom today.  What sets the United States apart from most other countries today is that none of those government employees decide whether Preston Workman is guilty or not, and none of them decide whether he should go to prison or not.  You do.  And I’ll guarantee you that, regardless of your verdict, the judge will sincerely thank you for your service and remind you that the system would not work without you.  You have a tremendous responsibility-  and you are upholding that responsibility just as vigorously by voting not guilty, where there is a reasonable doubt as you are by voting guilty where there is no such doubt.  Does anybody disagree with that proposition?

J.                    Does anybody think, for any reason, that you might somehow be shirking your responsibility by returning a not guilty verdict?

VII.      Prior Conviction(s)

A.                   The Court may instruct you that when a defendant testifies, and when he has previously been convicted of a crime, you may hear evidence of that prior crime for the sole purpose of deciding the believability of his testimony and the weight to give his testimony, and for no other purpose.  The court will further instruct you that you must not consider that prior conviction as evidence that Mr. ___ is more likely guilty of the crime for which he is now on trial.  In fact, if Mr. __ chose not to testify, you would never be able to hear about that prior conviction at all.  Would any of you have any opinions or beliefs that would prevent you from following the law in that regard?

B.                 Have you ever known someone who had been in trouble with the law and then turned over a enw leaf and stayed out of trouble?

C.                 Do any of you think that if Mr. ___ committed a crime in the past, he is more likely to have committed the crime which he is on trial for today?

VIII.     Misc. / Conclusion

A.                 TV Law- In the last five minutes, the prosecuting witness recants, or the real criminal confesses under grueling cross examination, and then the prosecutor sheepishly dismisses the case in open court.  This is the real world, I’m no Matlock, and that’s not going to happen.  Real trials and real witnesses are more tedious than titillating.  Nobody here is going to expect a Matlock or Perry Mason finish, are they?

B.                 Would you join a verdict of most- or even all- of the other jurors to conclude the case, even if it were contrary to your beliefs of the facts?

C.                 Based on what little you know about the facts of this case, and your own knowledge of your personal feelings, biases and notions, can any of you think of any reason why you would not be able to be a fair and impartial member of the jury in this case?

D.                If you were the defendant in this case, is there any reason why you wouldn’t want someone such as yourself sitting as a juror?

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