Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Voir Dire
Outline Note
Jury Selection Varies More than Any Other Aspect of Trial
Must Acquire Following Preliminary Information from Judge:
□ The date, time and location jury selection will begin.
□ Does the judge have a preferred table that the plaintiff and defense sits at?
□ Will the clerk of the court make available a list of names, addresses and other information
of the potential members of the venire? If so, when can this be acquired?
□ Can the attorneys attain a copy of the letters, forms and questionnaires that the clerk of
the court mails and distributes to the members of the venire, including any videos the
members of the venire view?
□ How many persons will the judge sit on the venire?
Will the judge asks questions of the venire? If so, what questions will the judge asks?
□ Will the lawyers be permitted to ask questions of the venire? If so, how long will each
attorney have for questioning? Will the lawyers be able to test an individual member of
the venire’s response to case specific facts and legal issues?
□ Will individual members of the venire be questioned in front of the entire panel or at
sidebar?
□ Will the judge permit the submission of a case specific questionnaire?
□ What system does the judge utilize for questioning the venire? Does he limit the
questioning to a specified number of the venire or does he permit questioning of the
entire venire?
□ What system does the judge utilize in down-selecting the jury? Does he take the first
six/twelve in the box, or will the lawyers strike venire members until the appropriate
number of jurors remain?
□ How many peremptory challenges will each side have?
□ Will the attorneys know who the replacement juror will be if an attorney uses a
peremptory challenge?
□ Will the judge permit back striking of members of the venire?
□ Does the Judge have a sitting chart for the courtroom. Show Example of Sitting Charts.
□ How many alternate jurors will be chosen?
□ Will the judge select the foreperson or will the jury? If the judge selects the foreperson,
will the judge do this before opening statement or after closing argument?
Law of Jury Selection
Peremptory Challenges
© Martin Levin
Voir Dire--Outline Notes, Page 1
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Number of Challenges Limited by Court Rules or Statute. For example, see Mass.
Gen. Law. 234 § 29 (“In a civil case each party shall be entitled to four peremptory
challenges.”) and Mass. R. Civ. P. 47(b) (“Each side is entitled to 1 peremptory
challenge in addition to those otherwise allowed by law if 1 or 2 additional jurors are
to be impaneled, and 2 peremptory challenges if 3 or 4 additional jurors are to be
impaneled”).
Batson v. Kentucky—Prosecutor Cannot Exclude Blacks from Jury because they are
Black and there is a Black Defendant
Powers v. Ohio—Prosecutor Cannot Exclude Blacks from Jury because they are
Black, even if Defendant is White
Edmonson v. Leesville—Batson Extended to Civil Juries
Georgia v. McCollum—Batson Extended to Defense Counsel Striking Blacks in
Criminal Trials
JEB v. Alabama—Batson Applied to Gender
Purkett v. Elem—Provides Batson Procedure
Opposing Party Makes Out Prima Facie Case of Batson Violation
Party Exercising Challenge Provides Race Neutral Reason
Opposing Party Then Must Prove Purposeful Discrimination
Trial Judge Has Virtual Complete Discretion
Mass. Gen. Law 234A § 3: “No person shall be exempted or excluded from serving
as a grand or trial juror because of race, color, religion, sex, national origin, economic
status, or occupation.”
Commonwealth v. Carleton —Batson Applies to Ethnic Groups
Commonwealth v. Wood—Batson Does Not Apply to Age
Challenges for Cause
Can the Person be Fair and Impartial
No Limitation on Number of Challenges for Cause
© Martin Levin
Voir Dire--Outline Notes, Page 2
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Knowing Future Panel
Back Striking [Rule 6, Mass. R. Superior Court, Provides No Back Striking]
Preserving Appeal
If Judge Does Not Grant Challenge for Cause and Run Out of Peremptory Challenges,
then Must Seek Additional Peremptory Challenges to Preserve Appeal
Submit and State Orally on Record Questions You Deem Important that are not Asked
Renew Objections to Questions Not Given
Renew Objections to Venire Members Who Should or Should Not be on Jury Panel
Understanding Venire Dynamics
People Generally are Anxious
The Setting is Highly Unusual and Formal to Them
They are Concerned They are not Intelligent Enough to Follow Process
Their Afraid of Having to Reveal Personal Info
They are Looking for Someone to be Their Guide and Teacher—Generally this is the
Judge, but the Lawyer also Becomes Invaluable if Trusted
Crucial to Develop Leadership Quality and Credibility Early On
Demeanor
Professional in Dress and Demeanor to Everyone in Courtroom
Must Sincerely Exhibit and Promote Friendliness, Honesty and Openness—Must Get
Venire Speaking
Recognize Anxiety and Fears of Members of Venire—Especially Personal Matters
Explain to Members of Venire to Ask to Speak in Private for Personal Responses
Do Not Evade Venire’s Space—I Do Stand Behind Podium
Get Involved in Open Dialogue in Conversational and Attentive Manner
© Martin Levin
Voir Dire--Outline Notes, Page 3
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Must Get Members of the Venire Openly Talking
Get Prejudices and Preconceived Opinions to the Open
People Do Not Like Expressing Opinions in front of Stranger, Especially Prejudices
and Minority-Held Opinions
Say What is Truly on Your Mind and Their Mind (e.g., My Client is Dark-Skinned
Black, Thus He is Scary and Guilty)
Have Good Eye Contact with all Members of the Venire and Show Genuine Interest in
Answer
Listen Attentively to What Potential Jurors Are Saying and Follow-Up
Do Not Stick to Your Written Questions
Example--Mauet pp. 52-53
Have Others Assist with Note Taking so I can Concentrate on Discussion
Show Sample Sitting Charts
Show Sample Notes from a Voir Dire
If the Questioning or Answers Become Sensitive, Then Ask the Jurors to Approach the
Bench to Continue to the Questioning in Private
Types of Jurors
Stay Away from Generalizations Based on Demographics—Especially 2-3
Demographic Items
Always Keep Off Persons with Too Much Knowledge of Issues or Facts—They Will
Become 1 Person Jury. It’s Never Worth the Chance, Even if they Appear for You
Be Careful With Jurors Who Are Too Similar to Your Client or Witnesses—They Will
Tend to Incorporate Their Own Weaknesses and Flaws into the Client or Witness
Determine Persuaders v. Non-Persuaders—Persuaders Will Control Jury. It’s Crucial
to Try to Have Your Persuaders as Neutral as Possible
© Martin Levin
Voir Dire--Outline Notes, Page 4
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Jurors with Special Knowledge of the Facts or Circumstances and Partial Persuader-
Type Jurors are Much More Important to Keep Off than “Average-Type Persons” Who
Simply Hold Opinions Contrary to Some of Your Positions (e.g., the person believes in
Caps on Damages)
Be Extremely Careful Analyzing Body Language (It’s Virtually Impossible to
Understand all the Dynamics of what the Body Language truly is Reflecting. This is
true for folding arms, rolling eyes, leaning back in chair, dress, tone of voice, inflection
of voice)
Determine Specific Types of Persons You Want and Don’t Want Based on Your
Common Experience, Focus Groups and Surveys (Not Generalizations)
Focus Groups & Mock Trials
Focus Groups and Mock Trials are a Process of Determining Thoughts of “Potential
Jurors” Regarding Specific Facts and Circumstances of Case
Focus Groups and Mock Trials are Single Best Means to Finalize Strengths and
Weaknesses of Specific Case
Focus Groups and Mock Trials are Single Best Means to Determine Positive and
Negative Juror Types for Specific Case
Types of Focus Groups
Presentation of Facts and Issues by Single Attorney
Mock Trials—Presentation of Both Sides by Two Opposing Attorneys
Generally Longer Presentation than Single Attorney Approach
Show Sample Notes from a Focus Group and Mock Trial
E-Juries—Electronic Feedback from Hundreds of Online Participants
Companies that Offer Service
Ejury LLC—www.ejury.com
Jury Voice—www.juryvoice.com
Virtual Jury—www.virtualjury.com
© Martin Levin
Voir Dire--Outline Notes, Page 5
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Positive of E-Juries—Extensive Feedback
Negative of E-Juries:
Likely Not Diversity of Actual Jury
Doesn’t Benefit from Live, Group Exchange
Group Deliberation Dynamic is Much Different Than Single
Person Making Decision
Process of Putting Focus Group and Mock Trial Together
Get Prior Venire Lists from Court and Call the Persons
Pay Them for 4-Hours of Time on Weekend
Send them Questionnaires to Fill Out (Seeking Demographics and Thoughts on
Specific Issues of concerns)
Select Four or More Panels in Half-Day Increments
Stack Each Panel with Proper Diversity
Preparing Voir Dire Questions
What Questions, if any, Will the Judge Asks Members of the Venire. For example, see
Mass. Gen. Law. 234 § 28 and Mass. R. Civ. P. 47(a):
“The trial judge shall examine on oath all persons called as jurors, in each case,
and shall ask: (1) whether any juror or any member of his family is related to any
party or attorney therein; (2) whether any has any interest therein; (3) whether any
has expressed any opinion on the case; (4) whether any has formed any opinion
thereon; (5) whether any is sensible of any bias or prejudice therein; and (6)
whether any knows of any reason why he cannot or does not stand indifferent in
the case. The trial judge may submit, of his own motion or on that of any party,
such additional questions as he deems proper. The trial judge may also, on motion
of any party, permit the parties or their attorneys to make such further inquiry of
the jurors on oath as he deems proper.”
Will the Judge Allow the Attorneys to Ask Questions, if so, What Type and For How
Long
© Martin Levin
Voir Dire--Outline Notes, Page 6
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
If the Judge Will Not Allow Attorney Questions, Will Judge Allow Juror Questionnaires
to be Submitted
When Developing Questions for Judge, Yourself or Questionnaire, Must Consider the
Following:
Must Know Strongest and Weakest Points of Case
Must Know Theme
Determine Most Feared Type Jurors and Most Beneficial Jurors (Based on
Common Sense, Focus Groups and Mock Trials)
Must Address Weakest Points and Other Concerns with Jury (Be Blunt and
Honest about Fears of Issues of Most Concern)
Must Ask Questions that Directly and Openly Address Your Concerns (e.g.,
Representing Dark Skinned Black Man in Criminal Case)
Questions Should be Short, Non-Leading, Open-Ended
Example--Mauet pp. 51 & 52
The More General the Question the Better--You are Trying to Determine Who the
Person Really Is
Life Experiences
Personal Beliefs
Hobbies and Interest
Honest Fears
Questions Must Be Non-Judgmental—Never Criticize or Argue with Venire
Show Form Voir Dire Questions and Point Out the Following:
Remember, Like All Aspects of Trial, You Need to be as Brief as Possible in Jury
Selection. Thus, You Cannot Ask All Form Questions. You Must Select Those
Questions Most Crucial to the Facts and Circumstances of Your Case. However,
Ask as Many Crucial and Important Questions as Court will Permit.
© Martin Levin
Voir Dire--Outline Notes, Page 7
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Prepare Introductory Remarks
Prepare Neutral Statement of Facts
Begin with Benign, General, Introductory Group Questions about Parties,
Attorneys, Witnesses, Prior Jury Experience, etc.
Permits Members of the Venire to Get Comfortable with Process
Proceed to More Specific Group Questioning, such as Church Attendance,
Thoughts on Pain and Suffering Damages, Capital Punishment
Proceed to Issues of Great Concerns in the Case, such as Dark-Skinned Black
Man Being Accused of Violent Crime, Suing Local Religious Healthcare Provider
Proceed to Individual Questioning
Try to Stay Very General (Hobbies, Interest, Organizations, Magazine
Subscriptions, Books Like to Read)
Interesting Questions:
What Job Would You Most Like To Do, If Money Were Not an
Issue
What is the Most Important Thing You Have Taught Your
Children
How Would Your Family and Friends Describe You
Proceed to Final Group Questioning
Difference Between Civil and Criminal Case
Burden of Proof
“Is There Anyone Who Needs to Tell Me Something”
“Is There Anyone Here Who Does Not Feel Comfortable Serving as a
Juror on this Case”
Direct Eye Contact to People You Are Concerned With—such as
People Who Have Not Spoken Much
© Martin Levin
Voir Dire--Outline Notes, Page 8
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
Final Thoughts on Voir Dire Process
Have Voir Dire Written Out
Have Sitting Chart Prepared
Have Applicable Case Law Copied, Highlighted and Appropriate Number of Copies
Get Potential Venire List (including Names, Addresses and Age) ASAP
Get Completed Venire Questionnaires ASAP
Arrive 30 Minutes Early with Client (All Appropriately Dressed)
Organize Courtroom for Voir Dire (Including Counsel Table and Podium)
Listen Carefully to All Questions and Answers
Have Someone Assist with Keeping Track of Answers
Judge Individual Members of Venire Based on Life Experiences and “the Person”—Not
Generalizations
Use Generalizations When Lacking Information on Specific Person
Voir Dire Class Reading
□ Fed. R. Civ. P. 47, 48; Mass. R. Civ. P. 47; Mass. General Laws Ch. 234 §§ 28 &
29; Mass. General Laws Ch, 234A §§ 3 & 67
□ Thomas A. Mauet, Trial Techniques Ch. 3, pp. 31-60 (6th ed., Aspen Publishers,
2002)
□ Miscellaneous Articles on Voir Dire (Course Book-19)
□ Smith v. Wal-Mart, Focus Group Questionnaire, Script and Verdict Form (Course
Book-20)
□ Massachusetts Venire Questionnaire (Course Book-21)
□ Smith v. Wal-Mart, Voir Dire Questioning (Course Book—22)
© Martin Levin
Voir Dire--Outline Notes, Page 9
Course Title: Evidence
Professor: Charles Nesson
Date: Winter 2007
□ Levin & Papantonio, Form Voir Dire Questioning (Course Book-23)
Reference Material:
Massachusetts General Laws Ch. 234 (Juries) & 234A (Office of Jury
Commissioner for the Commonwealth)
Class Assignment: Due Monday March 12
You are representing Robert Brown against Free Health Services, Inc. List the
thirty (30) voir dire questions that you believe are most important to inquire of
members of the venire.
Opening Statement Class Reading:
□ Levin & Papantonio, The Fundamentals of Opening Statement (Course Book-24)
□ Levin & Papantonio, The Format of Opening Statement (Course Book-25)
□ Levin & Papantonio, Issues that Might Arise in Opening Statement (Course Book-
26)
□ Edward M. Swartz, Trial Handbook for Massachusetts Lawyers, Opening
Statements, Chapter 7, pp. 219-225 (3rd ed., West Group, 1999 & Supp. 2005),
Call Number KFM2938 .S95 1999
□ William C. Flanagan, Trial Practice, Vol. 43, Massachusetts Practice Series, §
10.2 pp. 231-233 (Thompson-West 2005), Call Number “Mass Practice Series v.
43” available with Reference Librarian
Reference Material:
Smith v. Wal-Mart, Opening Statement and Outline (Course Book-27)
© Martin Levin
Voir Dire--Outline Notes, Page 10