The Psychology of Voir DireThe Psychology of Voir Direas presented onas presented on

By: Laura GormanBy: Laura Gorman

One sunny day, One sunny day, on the corner on the corner

of Sesame Street and of Sesame Street and Avenue QAvenue Q

a large group of monsters a large group of monsters gathered together, as they gathered together, as they

discussed the surprising mail that discussed the surprising mail that had arrived that day.had arrived that day.

All of the monsters in the All of the monsters in the neighborhood had randomly neighborhood had randomly been selected for jury duty.been selected for jury duty.

““Does anyone even know Does anyone even know what this case, what this case, People/Monsters v. Oscar People/Monsters v. Oscar the Grouch, is about?” the Grouch, is about?” asks a curious and asks a curious and somewhat tickledsomewhat tickled Elmo. Elmo.

““Well,” says Grover, “I don’t know for Well,” says Grover, “I don’t know for sure, but I heard there was fowl play. sure, but I heard there was fowl play.

Oscar, being his usual grouchy self, got Oscar, being his usual grouchy self, got sick of Big Bird and all that cheery yellow- sick of Big Bird and all that cheery yellow-

so he finished BB off.”so he finished BB off.”

Kate chimes in, “I don’t think Kate chimes in, “I don’t think we should be talking about we should be talking about

this. We are supposed to be this. We are supposed to be impartial jurors. At least that’s impartial jurors. At least that’s what I think voir dire is about.”what I think voir dire is about.”

““What do you mean?” asks the What do you mean?” asks the group… “What’s Voir Dire?”group… “What’s Voir Dire?”

Kate stammers, “wwwwell, I think Kate stammers, “wwwwell, I think it’s the process of asking it’s the process of asking

questions and picking jurors to questions and picking jurors to get an impartial jury for a case…get an impartial jury for a case…but maybe we should do some but maybe we should do some

research to make sure.”research to make sure.”

““And where should we start And where should we start Kate?” asks TrekkieKate?” asks Trekkie

Kate answers, “I think first we Kate answers, “I think first we should look at Secondary should look at Secondary

Sources, from there look at Sources, from there look at Primary Authority, and finally Primary Authority, and finally

look to Other Available look to Other Available Sources.”Sources.”

So the monsters all head off to So the monsters all head off to do research on Voir Dire and do research on Voir Dire and the psychology that goes into the psychology that goes into the process. They all want to the process. They all want to know exactly what they will be know exactly what they will be

going through, after all!going through, after all!

Secondary SourcesSecondary Sources

EncyclopediasEncyclopedias

Am. Jur.Am. Jur.

47 Am. Jur. 2d Jury 191, Duty of Juror to 47 Am. Jur. 2d Jury 191, Duty of Juror to Make True and Full DisclosuresMake True and Full Disclosures47 Am. Jur. 2d Jury 194, Manner of 47 Am. Jur. 2d Jury 194, Manner of Conducting Voir DireConducting Voir Dire47 Am. Jur. 2d Jury 202, Length or 47 Am. Jur. 2d Jury 202, Length or Duration of Voir DireDuration of Voir Dire47 Am. Jur. 2d Jury 190, Testimony on 47 Am. Jur. 2d Jury 190, Testimony on Voir DireVoir Dire

““So,” says Trekkie, “through So,” says Trekkie, “through American Jurisprudence, we American Jurisprudence, we

learned that the court uses Voir learned that the court uses Voir Dire to determine if each juror is Dire to determine if each juror is

competent, that we have a duty to competent, that we have a duty to fully disclose our opinions, the trial fully disclose our opinions, the trial

court has to make sure potential court has to make sure potential embarrassment is protected, and embarrassment is protected, and

there is no required limit on time for there is no required limit on time for questioning.”questioning.”

C.J.S.C.J.S.

50A C.J.S. Juries § 409, Challenges and Objections 50A C.J.S. Juries § 409, Challenges and Objections to Jurors or Selection Process C. Challenges for to Jurors or Selection Process C. Challenges for Cause; Competency of Jurors 2. Competency; Cause; Competency of Jurors 2. Competency; 50A C.J.S. Juries § 472, Challenges and Objections to 50A C.J.S. Juries § 472, Challenges and Objections to Jurors or Selection Process E. Voir Dire Examination Jurors or Selection Process E. Voir Dire Examination of Jurors, Examination Concerning Particular Topicsof Jurors, Examination Concerning Particular Topics50A C.J.S. Juries § 470, Challenges and Objections to 50A C.J.S. Juries § 470, Challenges and Objections to Jurors or Selection Process E. Voir Dire Examination Jurors or Selection Process E. Voir Dire Examination of Jurors, Types of Questions or Remarks Allowedof Jurors, Types of Questions or Remarks Allowed57 C.J.S. Military Justice § 155, Courts-Martial C. 57 C.J.S. Military Justice § 155, Courts-Martial C. Military Judges; Reporters and Interpreters; Member- Military Judges; Reporters and Interpreters; Member- Voir DireVoir Dire

““After looking through another After looking through another encyclopedia, Corpus Juris encyclopedia, Corpus Juris

Secundum, we know that a juror Secundum, we know that a juror might be excluded based on their might be excluded based on their

beliefs of capital punishment, beliefs of capital punishment, sometimes the court is required to sometimes the court is required to ask about potential biases, most ask about potential biases, most questions are proper unless they questions are proper unless they are argumentative, repetitious, are argumentative, repetitious,

prejudicial, misleading or confusing, prejudicial, misleading or confusing, and we can be questioned about and we can be questioned about

being racist!” declared grover.being racist!” declared grover.

Secondary SourcesSecondary Sources

TreatisesTreatises

TreatisesTreatises

Jury Selection Strategy and Science § 3.3 (3d ed.) Jury Selection Strategy and Science § 3.3 (3d ed.) “Identifying Bias Among Potential Jurors- Implied Bias” “Identifying Bias Among Potential Jurors- Implied Bias” Ted DonnerTed DonnerJury Selection Strategy and Science Ch. 5. Ref. (3d Jury Selection Strategy and Science Ch. 5. Ref. (3d ed.) “Working With Trial Consultants Chapter ed.) “Working With Trial Consultants Chapter References” Ted DonnerReferences” Ted DonnerJury Selection Strategy and Science § 10:8 (3d ed.) Jury Selection Strategy and Science § 10:8 (3d ed.) “Juries as Task-Oriented Groups- Anticipating Group “Juries as Task-Oriented Groups- Anticipating Group Dynamics During Deliberations” Ted DonnerDynamics During Deliberations” Ted DonnerJury Selection Strategy and Science § 17:1 (3d ed.) Jury Selection Strategy and Science § 17:1 (3d ed.) “Strategic Objectives- Crafting Appropriate Questions “Strategic Objectives- Crafting Appropriate Questions for Use in Voir Dire” Ted Donnerfor Use in Voir Dire” Ted Donner

Secondary SourcesSecondary Sources

A.L.R. AnnotationsA.L.R. Annotations

Federal A.L.R. AnnotationsFederal A.L.R. Annotations

28 ALR Fed. 27 Romualdo P. Eclarea 28 ALR Fed. 27 Romualdo P. Eclarea LL.B. LL.M. Voir Dire Examination of LL.B. LL.M. Voir Dire Examination of Prospective Jurors Under Rule 24(A) of Prospective Jurors Under Rule 24(A) of Federal Rules of Criminal ProcedureFederal Rules of Criminal Procedure

State A.L.R. AnnotationsState A.L.R. Annotations

96 ALR 3d 15 Racial or Ethnic Prejudice of Prospective 96 ALR 3d 15 Racial or Ethnic Prejudice of Prospective Jurors as Proper Subject of Inquiry or Ground of Jurors as Proper Subject of Inquiry or Ground of Challenge on Voir Dire in State Criminal Case.Challenge on Voir Dire in State Criminal Case.14 L. Ed. 2d 763 Effect of Accused’s Federal 14 L. Ed. 2d 763 Effect of Accused’s Federal Constitutional Rights on Scope of Voir Dire Examination Constitutional Rights on Scope of Voir Dire Examination of Prospective Jurors- Supreme Court Casesof Prospective Jurors- Supreme Court Cases95 ALR 3d 172 Religious Belief, Affiliation or Prejudice 95 ALR 3d 172 Religious Belief, Affiliation or Prejudice of Prospective Juror as Proper Subject of Inquiry or of Prospective Juror as Proper Subject of Inquiry or Ground for Challenge on Voir DireGround for Challenge on Voir Dire63 ALR 3d 1052 Jury Membership in Racially Biased or 63 ALR 3d 1052 Jury Membership in Racially Biased or Prejudiced Organization as Proper Subject of Voir Dire Prejudiced Organization as Proper Subject of Voir Dire Inquiry or Ground for ChallengeInquiry or Ground for Challenge

Secondary SourcesSecondary Sources

Legal PeriodicalsLegal Periodicals

LegalTracLegalTrac

““Select the Right Jury for Your Case, Here’s How to Root Out Bias Select the Right Jury for Your Case, Here’s How to Root Out Bias Among Potential Jurors During Voir Dire to Strengthen Your Client’s Among Potential Jurors During Voir Dire to Strengthen Your Client’s Chance of a Fair Trial” Dan Christensen, Trial, April 2004 v. 40 i4 Chance of a Fair Trial” Dan Christensen, Trial, April 2004 v. 40 i4 p.58(5)p.58(5)““Latent Bias and the Challenge of Voir Dire” Brian Wojtalewicz, Latent Bias and the Challenge of Voir Dire” Brian Wojtalewicz, Bench & Bar of Minnesota, Feb. 2004 v. 61 i2 p. 18-22Bench & Bar of Minnesota, Feb. 2004 v. 61 i2 p. 18-22““Voir Dire: It’s Not Just What’s Asked, But Who’s Asking and How” Voir Dire: It’s Not Just What’s Asked, But Who’s Asking and How” David Court, Army Lawyer, Sept. 2003 p.32(3)David Court, Army Lawyer, Sept. 2003 p.32(3)““Avoid Bald Men and People with Green Socks? Other Ways to Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection” Valerie P. Hans, Improve the Voir Dire Process in Jury Selection” Valerie P. Hans, Alayne Jehle, Chicago-Kent Law Review, Summer 2003 v. 78 i3 Alayne Jehle, Chicago-Kent Law Review, Summer 2003 v. 78 i3 p.1179-1201p.1179-1201““Nonverbal Cues Show Bias Jurors May Hide in Voir Dire: It’s Not Nonverbal Cues Show Bias Jurors May Hide in Voir Dire: It’s Not What They Say, but How They Act” Andrea Mosmann. The Los What They Say, but How They Act” Andrea Mosmann. The Los Angeles Daily Journal, June 9, 2003 v. 116 il 10 p.S9Angeles Daily Journal, June 9, 2003 v. 116 il 10 p.S9

Lexis NexisLexis Nexis

““Symposium Issue on the Selection and Function of the Modern Symposium Issue on the Selection and Function of the Modern Jury: Commentary: Getting to Know You” Robert F. Hanley, The Jury: Commentary: Getting to Know You” Robert F. Hanley, The American University Law Review, Winter 1991. 40 Am. U.L. Rev. American University Law Review, Winter 1991. 40 Am. U.L. Rev. 865865““Civil Trial Reform and the Appearance of Fairness” Patrick E. Civil Trial Reform and the Appearance of Fairness” Patrick E. Longan, Marquette Law Review, Fall 1995, 79 Marq. L. Rev. 295Longan, Marquette Law Review, Fall 1995, 79 Marq. L. Rev. 295““Paying the Piper: Proposed Reforms of the Increasingly Bountiful Paying the Piper: Proposed Reforms of the Increasingly Bountiful but Controversial Profession of Trial Consulting” Franklin Strier, but Controversial Profession of Trial Consulting” Franklin Strier, South Dakota Law Review, 1998/1999, 44 S.D. L. Rev. 699South Dakota Law Review, 1998/1999, 44 S.D. L. Rev. 699““Swearing with Crossed Fingers: Jury Honesty and Voir Dire” Jan Swearing with Crossed Fingers: Jury Honesty and Voir Dire” Jan Mills Spaeth, State Bar of Arizona, Jan. 2001, 37 AZ Attorney 38Mills Spaeth, State Bar of Arizona, Jan. 2001, 37 AZ Attorney 38““Voir Dire Debate Escalates Over Lawyer’s Participation” John Voir Dire Debate Escalates Over Lawyer’s Participation” John Riley, The National Law Journal, December 24, 1984Riley, The National Law Journal, December 24, 1984““To Down a Stealth Juror, Strike First” Edward M. Bodaken, George To Down a Stealth Juror, Strike First” Edward M. Bodaken, George R. Speckart, The National Law Journal, Sept. 23, 1996R. Speckart, The National Law Journal, Sept. 23, 1996

““Boy there sure are Boy there sure are a lot of journal a lot of journal

articles out there articles out there talking about the talking about the

psychology of voir psychology of voir dire!” says cookie dire!” says cookie

monster, as he monster, as he devours yet another devours yet another

cookie.cookie.