The Art and Science of Voir Dire: Empirical Research, Anecdotal Lessons from the Masters, and Illustrations Supporting the Ten Commandments of Voir Dire

Abstract

The least examined aspect of trial is voir dire. While numerous law review articles and textbooks have studied and analyzed opening statements, direct and cross examinations, and closing arguments, voir dire has been largely left under discussed. In part, that can be explained because, with few exceptions, voir dire is the product of local customs and idiosyncrasies which vary not just from state to state, or even county to county, but oftentimes from courtroom to courtroom within a particular courthouse. Another reason accounting for the relative paucity of voir dire research and examination is the free-wheeling nature of voir dire. As the only aspect of trial where advocates directly interact with persons from outside the system prospective jurors bring an element of uncertainty and randomness to voir dire that can defy efforts to suggest approaches let alone specific rules. Yet despite the somewhat chaotic and even messy nature of voir dire, there are truisms that can and will assist counsel. It is to those truisms that this article speaks. The ten commandments set forth herein instruct that counsel should (1) be personable, be professional; (2) personalize self and client; (3) eliminate barriers; (4) escalate gradually; (5) use open-ended questions; (6) initiate group discussions; (7) recognize that disclosure begets disclosure; (8) avoid blue-sky questions; (9) prick boils; and (10) end with a catch-all question.

Keywords: voir dire, jury selection, trial practice, litigation