Jury questionnaire collectors, here are three more for your file. Trial skills teachers, here's a group practice exercise I plan to try soon; you're welcome to borrow it.
I've said before that voir dire is a thought process, not a list. You're brainstorming. It goes like this:
- List all the topics your trial touches on.
- Think of all the ways you might learn how jurors approach those topics. You can and should ask directly about the topics, but that won't elicit very much. Instead, focus on what experiences have shaped their reactions to your topics; what experiences will make them jury leaders on your topics; and how do they show -- through bumper stickers or buying habits -- how they feel about your topics.
- Ask jurors to tell you about all those things, and you'll have done a strong voir dire.
It sounds simple, but when you're staring at a blank sheet of paper on Sunday night, you'll wish you'd practiced. So here are some practice materials. All the unsealed documents in the prosecution of accused 9/11 conspirator Zacarias Moussaoui -- pleadings, orders, grim photographs, everything -- are posted in a special section of the website for the United States District Court for the Eastern District of Virginia. The government's and defense proposed jury questionnaires, and the final version the court gave, are all there. (June 2007 update: awhile after I wrote this, the court took the web page down; these links are to uploaded copies. Thanks to John Gilleland of TrialGraphix for the final version.)
Building the topics list
The Moussaoui questionnaires make a great practice exercise, whether you're alone or with a group. Start with the topics list; write down every topic you can think of that the Moussaoui case touches on. Your list will probably begin like this:
- September 11
- Muslims and Islam
- Law enforcement
- Crime and violence
- The death penalty
And so on. When you're finished, read the government's proposed questionnaire, the shortest of these three. Jot down the topics covered there that you didn't think of. You might not have thought of airplanes, the 9/11 terrorists' chosen weapon. You might list broader topics about the Middle East. You'll note that the government asked about human rights, and write that down.
Next, before you go on, stop and explore your own thoughts again. What would you add to the topics list that the government didn't include? When the list is as long as you can make it, go to the court's final questionnaire and finally to the defendant's 69-page proposed questionnaire, expanding your list each time. Give yourself the last word: is there a topic that nobody thought of?
Experiences and behaviors
On to step two: what to ask about. This part is not instinctive, but it's easy to learn. If you ask directly about the topics on your list, you'll get some helpful information, but it won't be enough -- and it won't be accurate, because we all believe we're more open than we are. You need experiences and behaviors: what has happened to shape your jurors' attitudes, and what they do that displays their attitudes.
Start with one topic on the list, September 11 itself. What formative September 11 experiences might these jurors have had, and what might they have done or not done that would show it? There are people who changed their whole lives after September 11 -- quit jobs, got married, joined the military. What will you ask?
Interestingly, the government's Moussaoui questionnaire has almost nothing on this topic. One question asks whether jurors had family members or close friends who were killed or injured in the attacks, and that's about all. By the time you go through the defense and final questionnaires, though, you'll have asked yourself whether these Virginia jurors drive past the Pentagon site; whether they know anyone who is reluctant to fly after September 11; and whether they had to work overtime after the attacks. Can you think of anything else? Any yellow ribbons around trees in their yard?
The more people the better
This exercise will also remind you that the more people you involve in this process, the better the result will be. The government thought of things the Moussaoui defense team didn't, and vice versa.
(Photo by Chelseagirl at http://flickr.com/photos/chelseagirlphotos/383788580/; license details there.)