The Art of Jury Selection

If you’ve seen the rise of Dr. Phil McGraw or the fictionalized television show that aired about him on CBS, Bull, or really seen any show where attention is paid to the beginning of a trial, known as jury selection or voire dire (see Jury Duty with James Marsden), then you know it is the attorneys’ opportunity to question potential jurors who could be selected to sit on a jury and hear a case to make a determination having heard all the testimony and seen all the evidence.

Much attention is being paid to the jury selection in the Donald Trump hush money trial occurring in NYC this week, as approximately half the jury panel brought together was dismissed due to their claimed inability to be fair and impartial. As potential jurors are being brought into the box, the attorneys are questioning them on a wide variety of topics, including social media. One topic not to be discussed is politics, in that the attorneys are not to ask questions about political affiliation or who they intend to vote for in the upcoming election.

My office primarily deals with civil cases not criminal cases, but the theory behind voire dire and the questions asked of potential jurors is the same. Each side wants to sit the panel they believe is best suited for the case they intend to put on. That can mean, for example, in a medical malpractice case, you don’t want a medically savvy juror, because you want to press your spin through the expert testimony and having someone who understands medicine can be a problem. For an interesting take on this, check out the episode of For the People, a now canceled show which followed federal prosecutor’s and public defenders in the “Mother Court” where the Chief Judge was summoned to jury duty and selected to be on the panel.

If you watched Bull or The Judge, you saw the various types of questions that can be asked. Who doesn’t want to know what bumper stickers are on a person’s vehicle or what shows they watch? But for an attorney, the information shared helps to paint a picture of the person, their interests, their belief systems, in a relatively innocuous way. Jury selection is important, and can sway how a case shakes out in terms of a verdict. In recognition of this, lawyers have “for cause” and “peremptory” challenges.

For cause means exactly what it seems, they are alleging the juror, based on the responses given, cannot be fair and impartial and should not be empaneled. There are unlimited number of for cause removals. For peremptory challenges, the attorney need not give a reason, but there are a limited number of these, so they must be used strategically. And strategic use can come back as an issue, if it is found that the use of the peremptory challenges was done in a discriminatory way. At least one state (Arizona) has nixed peremptory challenges altogether.

It will be interesting to see the final makeup of the Trump jury, which presently has sat 7 jurors. They are looking to seat 12 along with 6 alternates. That is a bit different from my experience in NJ with civil cases. But again, the process itself of asking questions designed to identify the best jurors for your case is similar whether criminal or civil. I hope this has helped to “demystify” voire dire. Should you have any questions or topics you would like to hear more about, drop a comment. Have you ever served on a jury? If so, what was the question that you recall being asked?