Theme-Based Voir Dire

by Russell S. Humphrey

Don’t Pick a Jury.  Persuade a Jury.

Would you like to win more jury trials? If you are a typical trial attorney in the United States the obvious answer is yes. Of course you would like to win more often. Who wouldn’t? However, the real question is not whether you want to win more, rather, how can you win more? The answer to this question may be simpler than you think. In fact, the answer undoubtedly lies with the twelve strangers you pick to act as trial jurors in your case. The answer to better results lies with the jury. Pick a better jury and get better results. Simple as that.

Every trial attorney wants to win. To that end, many of us have gone to seminar after seminar, taken online classes, purchased books and conferred with experienced attorneys to look for tips to getting an edge on our opponent so we can prevail in court. Even though we all do that type of searching many of us don’t have any greater results in court to show for all of our effort. Why not? Typically the answer is because the searching trial attorney has not found the area that needs improvement. If you pick the same type of jury every time, your advanced skills in Opening Statement, Cross-Examination or Closing Argument likely fall on deaf ears. Even the most experienced trial attorney with great oratory skills cannot overcome a jury that was ill picked and that is opposed to the attorney’s position. If you don’t believe me do an experiment. Try to convince a “birther” that President Obama was born in Hawaii. Or try to convince Al Gore that humans don’t contribute to climate change. And since we are in an election year, try to convince your friends that the candidate from their opposite party affiliation won any of the debates. You can see where I am going with this. If your audience is against you then anything you do or say will not make a difference. Even the most righteous cases can fail if the trial lawyer does not pick an effective jury.  Pick a better jury and get better results.

In the hundreds of jury trials my partner and I have tried we found that the most effective way to pick a winning jury is to begin the persuasive process from the very moment you stand before the prospective jury during jury selection. We win a lot of cases. But to do so, we don’t just pick twelve people we think will vote for us. We don’t just pick a jury. We persuade a jury. From the very moment we stand before the jury we attempt to persuade the jury by introducing our theme and theme-lines of the case. If this is done effectively, the trial lawyer will be able to tell the jurors that are open to his or her position and at the same time expose any biases that may not be found during a typical “can you be fair” voir dire. Try it and you will see better results immediately.

Persuasion is the primary goal and skill of every trial lawyer. If you cannot persuade trial jurors you cannot win jury trials. It’s as simple as that. This is especially true in the criminal law arena. Every criminal defense attorney will tell you, and every jury study on the subject corroborates, that most prospective jurors believe the accused defendant is guilty even before the prospective juror knows anything about the case. Even the charges! It is even more true in the most serious cases such as murder, child molest and gang cases. There are also equally significant biases in civil court. Given the undisputed reality of jury selection if you want to win jury trials you must be able to persuade people whom are against you. You must also have the ability to change a person’s mind.

That is not to say that sometimes the Deputy District Attorney will gain a conviction even though he or she is non-persuasive and incompetent. After all, someone has to win. When attorneys such as this win the jury trial it is typically a function of a flawed jury trial system that stacks the deck against the defense attorney and defendant.  It is typically because of an inherent bias in the jury trial system against the accused. Jury trial studies support what criminal trial lawyers have known for years: namely that the prospective jurors want to convict the defendant as part of a knee jerk reaction to being part of the jury process. And if the trial attorney engages in a “can you be fair” voir dire, that lawyer will likely lose his case. Because the “can you be fair” voir dire asks the prospective juror questions that beg for a politically correct and expected answer. The most typical answer to the question whether a prospective juror can be fair is “yes, I can be fair.” Yet, we all know from the jury studies in the field that prospective jurors believe the accused defendant is guilty. How can we reconcile these facts? And when you think about it, what has the trial attorney achieved when the prospective juror says, in front of 100 strangers, that he or she can be fair?  “Can you be fair” voir dire is losing voir dire. “Can you be fair voir dire is the trial lawyers first step towards failure in the courtroom.

Knowing this information can help us all become more effective trial lawyers and win more cases. Once the trial lawyer realizes the typical juror is against him or has significant biases to the attorneys or client’s position, he can make a better assessment as to what jurors he or she would like to keep. The best way to pick a better jury is to discuss the theme and theme-lines of your cases and ask theme-based questions during voir dire. Whereas the typical voir dire asks; “can you be fair” which elicits a predictable response, theme-based voir dire discusses the theme of the case with the jurors at the earliest phase of the jury trial.  For example, in a jury trial where your client is accused of child molest and your defense is your client defendant was falsely accused, a great line of theme-based questioning may be: “How many of you(prospective jurors) have been falsely accused of something from someone else?” “How did it make you feel?” “What did you do as a result of the false accusation?” You will be shocked at the responses.  Instead of asking the prospective juror whether he or she subjectively believes he or she is fair, it is more important to determine whether they have anything in their background that may make them more open or understanding of your case. As this example illustrates your discussion introduces the theme of your case from the very beginning of the case. The effective attorney does not wait until the Opening Statement. It’s too late. The jury panel was already sworn in. And if the jury is against you then nothing you do or say thereafter will be effective.

Persuasion begins from the first moment you stand before the jury. And theme-based voir dire is persuasive voir dire because you let the jury know what the issues are and you let them in on the important aspects of your case from the beginning. It should also be noted theme-based voir dire is not one-way voir dire where the attorney asks the questions and the prospective juror answers. No. Theme-based voir dire is a two-way street. The attorney gets information from the juror and, at the same time, the attorney gives information to the jury.

That is how you persuade a jury. You give information as much as you receive it. Once you begin this process of introducing your theme as early as possible you will find that you can more precisely and accurately pick jurors that are favorable to your case.  As an additional example, in a recent case my client was accused of child molestation. My client said he didn’t do it. There were several witnesses. However, the way I beat the case and got an acquittal was because I began persuading the jury from the first moment I stepped before them.  I didn’t engage in a “can you be fair” voir dire.  I already knew the answer they would give and I knew they could not be fair. After all, my client was accused of raping and molesting a young girl.  Instead I conducted a theme-based voir dire.  I asked the jurors questions about their own life experience of being accused of something they did not do.  I backed it up with questions about what I call the  “Billy Graham Rule.” Evangelist Billy Graham described in his auto-biography that in his whole career he made it a point to never be in his office alone with a woman with the door closed. In his book he indicated two separate reasons for this rule. First, he did not want there to be any appearance of impropriety and second, he didn’t want to give anyone the chance to falsely accuse him of anything untoward. By the time I discussed the falsely accused line of questions and the Billy Graham Rule I think it was pretty clear that the jurors believed people could be falsely accused and those false accusations may have severe consequences.

After a four week jury trial the jury acquitted my client. Had I engaged in a standard “can you be fair” voir dire, I am convinced I would have lost. Every juror would have said “yes” they can be fair and they would have convicted my client. However, since I discussed the actual issues of the case from the very beginning and framed the issues in a light most favorable to my client I am convinced the jury saw the case through my client’s perspective. We won. Not because of a great Opening Statement or a brilliant Argument. Rather, I won because I had twelve jurors that were open to my defense.


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