VOIR DIRE aka Jury Selection
One of the most important stages of the trial is the jury selection process, commonly known as voir dire. This stage, often considered the beginning of the actual trial, sets the tone for the trial, and allows the lawyers to decide on who will actually be the group of people rendering the verdict. Naturally then, many defendants are curious about how the jury selection process works. Voir dire varies from jurisdiction to jurisdiction, but generally it is a procedure process managed by the judge and the attorneys in which the attorneys attempt to select an unbiased jury that they can both agree on.
In criminal cases the process is codified in 725 ILCS 5/114-4 "Trial by court and jury"
The jury consists of 12 members (this can by agreement be reduced to 6). Further, 2 alternate jurors are chosen.
Each party is granted preremptory challenges (strikes wtihout cause). The number of strikes varies depending on the nature of the charge and whether there are multiple defendants. On a typical case the judge will request 36 potential jurors to select from. Each party is granted 10 preremptory challenges in a felony case. For a misdemeanor case each party is granted 5 challenges.
Illinois Supreme Court Rule 431 governs Voir Dire in criminal cases. Section (b) is referred to as the Zehr instruction.
Rule 431 Voir Dire Examination
(a) The court shall conduct voir dire examination of prospective jurors by putting to them questions it thinks appropriate, touching upon their qualifications to serve as jurors in the case at trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges. Questions shall not directly or indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors.
(b) The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant’s failure to testify if a defendant does not testify it cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant’s failure decision not to testify when the defendant objects.
The Jury Selection Process
The jury selection process begins with a group of potential jurors being brought into the courtroom. Normally, the judge, attorneys, and defendants will also already be in the room. The judge will then often give a small speech about the importance of the jury process and the procedure of the day. Then, the judge will likely explain the charges, and ask if anyone in the potential jury pool knows anyone involved in the case, including the attorneys and witnesses. Once those people are excluded, voir dire begins in earnest.
During voir dire, the judge usually begins by requesting each potential juror state their age, city of residence, occupation, spouses' occupation, whether they have been involved in a lawsuit previously, whether they have been a victim of a crime or charged wtih a crime.
The attorneys then are given leave to question each juror, usually in blocks of 4. The goal of these questions is to expose jurors biases. If one of the jurors gives an answer that seems to show bias, such as if one of the jurors turns out to be a police officer, then a lawyer can use a “for cause” challenge.
In this challenge the lawyer makes their case to the judge about why the potential juror is biased. If the judge agrees, then the juror is stricken from the pool.
The difficult part about voir dire is to get potential jurors to admit their honest beliefs. In almost every voir dire I have conducted (over 100) it has come to the parties' attention either during or after selection that at least one juror has not been honest about their statements. Many times the fact of one being charged or convicted of a criminal offense is not mentioned, even after being directly asked about it. Many times it seems obvious that the juror cannot be fair but they won't admit to same. In those cases, experience in questioning them is the only way to explore the topic.
I recently selected a jury in which I could tell some of the jurors would not be fair to my client (charged with Agg. Domestic Battery) from their demeanor. Despite them all stating they could be fair. It's my job to attempt to remove those jurors so my client can have as fair a jury as possible. I was unable to get some of them to admit they wouldn't be fair. However, I was able to get 5 removed for cause due to their admission of unfairness. If the juror says they probably can be fair - that is not good enough. They can be stricken for cause.
Jury Selection Strategy
The strategy for lawyers during jury selection is to select the jury that will be most favorable to their client. For instance, a juror who has been the victim of a similar crime in the past may be especially harsh on similar crimes in the future. Lawyers may also make educated guesses about the jurors’ capabilities. If a defense lawyer in a white collar case has a highly technical economic defense, then having an accountant on the jury may help the defendant.
Jury selection is an important part of the case that can have a powerful effect on the outcome of a case.
Honestly, I learn something new about voir dire everytime I conduct it in a case. I learn techniques not only from experimenting with the jury pool but also by observing both the Judge and prosecutor's methods. It is a very intesting topic. I believe it makes a significant impact on each case.
An advanced technique I have used over 26 years of jury selection is to detemine which two members will potentially be the foreperson. This calculation is made after listening carefully to each individual's statements. Normally, a professional who is in the 50's or 60's will be my foremost candidate. But not always.