Limiting the participation of counsel during jury selection (or how to make a lawyer’s head explode)

Photo credit:  Robotclaw666's photostream per Creative Commons license.

Photo credit: Robotclaw666’s photostream per Creative Commons license.

Lawyers hate it, but in the federal courts the participation of lawyers in jury selection (voir dire) is typically quite limited.   For among other reasons, this is because the Supreme Court has vested very broad discretion in the federal trial judge to pick a jury in the manner the judge thinks best:

No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood, 299 U.S. 123, 145–146, (1936) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emphasized, is “particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594–595  (1976) (internal quotation marks omitted)

Skilling v. United States, 130 S.Ct. 2896, 2917  (2010) (in a very high-profile case, jury selection that took 5 hours, where lawyers were not allowed to ask initial questions and instead the judge did the initial questioning, complied with the Constitution; observing that other measures were used by the judge to assure impartiality such as giving more than the required number of peremptory challenges, allowing follow-up questions by the lawyers and using written jury questionnaires) (certain citations omitted).

Federal Rule of Civil Procedure 47(a) likewise gives the federal trial judge a lot of leeway to keep the lawyers quiet:

(a) Examining Jurors. The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.

Similar provisions govern criminal cases.  See Federal Rule of Criminal Procedure 24(a).

My Philosophy:  There are two views about jury selection.  One is the English rule.  The other is the American rule.

Predominant in the federal courts, the English rule assumes that lawyers should be seen and not heard during jury selection because the one and only reason for questioning jurors is to obtain a reasonable, but not perfect, assurance that the prospective panel is impartial.  Basically, there is only one question for a prospective jury panel member, and that is: “Do you know anyone involved in the trial?”  The English rule is judge driven based upon the belief that the parties really don’t want impartiality, they want to win.

The American rule is premised on the idea that jury selection is intended to insure impartiality on a deeper (cosmic) level.   The American rule is based upon the notion that impartiality is best achieved when the lawyers engage in a competitive enterprise to bias the prospective panel toward the positions of their respective clients.  Predominant in the state courts, the American rule is lawyer driven.

Can you guess what rule I favor?  Right.  I favor the English rule.  Actually, and as you will see if you read further, I favor a modified English rule.

United States District Judge Robin Cauthron from Oklahoma, a very experienced trial judge, who served on the state bench and as a United States Magistrate Judge prior to her appointment, summed up my thoughts pretty much exactly:

The last thing any lawyer wants is a fair jury. That’s not what you want. You want a jury that’s going to find for your client, and every lawyer-conducted voir dire is designed to influence the jury. It’s not designed to find fair and impartial jurors. If you’ve ever seen a trial proceeding in England, the only question that’s asked is, “Are you related to the parties?”

The point is that you have an impartial jury, not one that’s inclined to find in your favor but one that’s impartial. Now, knowing that, I know it’s very difficult for lawyers to establish a rapport with a jury and that you feel that disability going in. I have been on the state bench as well as the federal bench, and it was very common in state trials, criminal trials, for the jury selection process to take a week and for the trial to take one day. Now, if you think there is not a lot of unnecessary stuff going on in jury selection that takes that long, you’d be wrong. It is that experience, I think, that causes the federal court to be so restrictive in its voir dire practices.

PANEL TWO, Robin Cauthron, Dee Benson, Bruce Hall and David Cunningham, Tenth Circuit Judicial Conference, Santa Fe, New Mexico (2000), available as a law review article entitled WHAT TRIAL JUDGES WOULD LIKE TO SAY TO TRIAL JUDGES, 31 N.M. L. Rev. 241 (2001).

My Process:

What I will next do is to describe the process of jury selection I follow for both civil and criminal cases, a process that I have used for more than 25 years.  I will break the process into component pieces.  After I describe each component of the process, I will explain why that component is utilized.

  1.  Prior to trial, counsel are provided with a lot of written information relevant to jury selection. Counsel are provided with a jury questionnaire completed by individual prospective jurors that was developed by lawyers serving on our Federal Practice Committee.  The lawyers must destroy the questionnaires after the trial.  The one-page document provides the lawyers with details lawyers think are important.  The form of the questionnaire is available on our website. From my perspective, the questionnaire is a sop to the lawyers and, more important to me, makes it very difficult for a lawyer on appeal to argue that my limitation on lawyer voir dire was reversible error.  Additionally, for both civil and criminal jury trials, I have prepared hand-outs that are available to the lawyers on our website.   The hand-outs describe in greater detail much of what is written in the following portions of this post.  The hand-outs include (a) the “short list of my eccentricities,”  (b) the background questions I ask jurors to refer to when introducing themselves, (c) the questions I typically ask during voir dire and (d) my stock preliminary jury instructions.
  2. After I have completed my jury orientation (described in an earlier post), the prospective jurors are brought back into the courtroom. Out of the entire group, a smaller group of potential jurors are selected at random using a computer program. For criminal cases, I typically seat 31 potential jurors out of the entire group in order to get 12 trial jurors plus an alternate.  I typically seat 14 potential jurors for a civil case in order to get 8 trial jurors.  After these prospective jurors are seated, the lawyers are given a huge seating chart (about 3 feet square) and the name of each seated juror, together with brief biographical  information, is shown in the boxes.  The boxes correspond with the seat where a particular juror is located.  This chart provides the lawyer with an easy reference while questioning the jury.
  3. The prospective jurors are sworn.  The jurors are assured that the questioning is not intended to pry or embarrass.
  4. By that time, the courtroom deputy has provided each prospective juror with a one-page document entitled “Background Questions.”   Basically, the questions ask for name, city of residence, marital status, and employment status of the juror.  Then, each prospective juror is handed a microphone and in turn speaks aloud and introduces himself or herself to the lawyers by reciting the information asked for on the sheet.  This is done to help each panel member relax and become accustomed to speaking in open court.  The juror remains seated.
  5. The lawyers are asked to introduce themselves and any colleagues or case agents or parties seated at counsel table.  The lawyers are then asked to recite aloud the names of witnesses who may be called to testify.  The  prospective panel members are asked to keep in mind any name that sounds familiar.
  6. I then begin to question the panel.  My questions are directed to the panel as a whole.  For both criminal and civil cases, I have a list of questions I typically ask.  Counsel are provided with a copy of that sheet prior to trial.  If a juror responds to one of my questions, the juror does so by using a microphone.   Jurors are told that if a sensitive matter arises, and they would prefer not to speak about the matter in front of everyone else, they may come to the bench.  If that happens, white noise is pumped into the courtroom and the lawyers and I speak with the juror at the bench.  The bench conference is recorded as is the entire process of jury selection.
  7. After I am done questioning, I allow counsel to inquire about anything they wish.  Each side has 20 minutes, and the time limit is strictly enforced.  Counsel must use the podium, and must not stray from the podium.  Counsel may challenge any panel member for cause.  If so, that challenge is done at the bench outside the hearing of the prospective jurors, white noise is pumped into the courtroom, and the conference is recorded.
  8. After each side has questioned the panel, and after each side has “passed the panel for cause,” the lawyers then exercise their peremptory challenges.  The courtroom deputy (CRD) takes a reduced version of the seating chart, and stands between counsel and their tables.  Starting with the plaintiff, she hands the seating chart to the first lawyer who exercises a challenge by striking the name from the seating chart and placing the lawyer’s initials next to the strike.  The second lawyer follows suit.  The process continues back and forth until a jury has been selected.  During this time, the prospective jurors remain in the courtroom so the lawyers can put a name with a face.  While the lawyers and CRD are working, I generally give the panel members a little talk about the history of the court.
  9. My goal is to complete the jury orientation and pick the jury before noon.  I accomplish that task almost 100 percent of the time and no matter the complexity of the case.

In summary, there are as many ways to pick a jury as there are judges.  I don’t pretend that my way is the best.  I am convinced, however, that the method I employ is efficient and results in a jury that is more or less impartial.   In the real world, that is all that should be expected.  Besides, I like watching exploding heads!


4 responses

  1. Pingback: Thinking about federal civil practice while preparing for Vince « Hercules and the umpire.

  2. Pingback: How long should it take to pick a jury in a murder case? « Hercules and the umpire.

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