Between science and voodoo: The real uses of voir dire

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There he goes again. Another post from Scott Greenfield along the lines of “I love Anne Reed’s blog, but I don’t believe a word she says.” Scott was teaching at Cardozo Law School’s Intensive Trial Advocacy Program, and hung around for the voir dire session. His conclusion: “[M]y confidence in voir dire is restored. It’s still just voodoo.”

It’s one of my enduring frustrations that Scott’s jury-selection-is-hooey posts are so good, and so difficult to respond to with clarity. I’ve tried and failed before, and slow learner that I am, I’ll try again.

A mock voir dire

What was the demonstration that proved to Scott that voir dire is voodoo? It was, as he says, pretty cool. Two experienced lawyers did a “beautifully crafted and masterfully executed” mock voir dire of twelve law-student “jurors,” with each lawyer allowed fifteen minutes to talk to the group. The students were “responsive and articulate.” There was moderation and commentary from Cardozo professor Barry Scheck (professor and bona fide hero, to be accurate; he runs not only this trial advocacy program but also the Innocence Project).

The lawyers told the group which jurors they’d strike and why; then the jurors told the group which side they liked and why. And it didn’t match up:

Everyone involved was half right and half wrong. Everyone. Decisions were made for speculative reasons or no reasons. Assumptions were made that were dead wrong. It was no better than flipping a coin. Despite the picture perfect exercise, these experienced and competent lawyers picked jurors on a wing and a prayer.

“[T]hey learned nothing that made the process accurate,” Scott says. “[A]ll this effort to refine what we do in voir dire to gain insight where we have none is an exercise in futility.”

Who said anything about accurate?

I know Scott speaks for many, many others when he says this. I think he’s wrong. Voir dire isn’t futile. What’s futile is expecting “accuracy,” or anything like it, in jury selection in the first place.

We make dozens of decisions whenever we give an opening statement: what to leave out, what to include, where to begin, how to act. We don’t expect those decisions to be “accurate.” Yet we gladly spend years working on the challenging and rewarding skill of opening, because we know it matters. The same is true of direct examination, cross, closing argument, preserving the record, working with documents, the whole list of trial skills — except one. When it comes to voir dire, lawyers expect more. Encouraged, I’m afraid, by a few overpromising jury consultants, lawyers insist that if a voir dire teacher or consultant can’t deliver jurors who will infallibly deliver a favorable verdict, then the whole idea of studying voir dire must be snake oil.

Killing the myth

Let’s kill the myth of accuracy in voir dire once and for all. Among the many reasons you can’t predict any juror’s verdict are:

• Jurors reach verdicts by interacting with each other. The same person, sitting in two different groups, can react to the same evidence in different ways.
• Jurors reach verdicts by interacting, if indirectly, with you, your client, opposing counsel, the judge, and the individual witnesses, not to mention the evidence. The complexity with which those myriad forces interact in any specific trial can only be respected; it can’t be predicted.
• Jurors don’t know their own prejudices. Chances are very good that when those students in the ITAP described which way they thought they were leaning and why, they weren’t always right.
• Statistical probabilities mean little when you’re looking at a group of twelve people. Say you somehow knew that 99 out of 100 white Midwestern soccer moms would support your case; is Mrs. Brown in the jury box the one, or one of the 99?
• You can never learn enough. People are so complicated that you don’t have time to get through even the important experiences and attitudes they’d be willing to tell you about, let alone the critically shaping experiences they’d never share.
• You don’t know how the trial will go. No trial has ever failed to surprise the lawyers in some way, usually an important way. The trial you think you’re picking jurors for isn’t the trial that you, or they, are about to have.

(Only one of those factors, the limitations of statistics, was at work in the ITAP demonstration. The lawyers’ picks might have looked a lot better after a full trial than they did after the half-hour exercise.) The uses of voir dire So if we can’t predict verdicts, should we just skip peremptory strikes? We may have to someday, but I hope not. I’ve listed elsewhere what I try to look for in voir dire — things like leadership, sense of control, identification with institutions and the status quo, and just plain whether this person is going to like me and my client. (Eric Turkewitz says he looks for jurors he’d like to have a beer with.) You can get a sense of these things in a good voir dire, if you’re listening and open.

And what do you do with this “sense,” when you get it? You use your experience and intuition to make the best strike decisions you can — knowing that those decisions might turn out poorly, just as any of the hundreds of other decisions you’ll make in the trial might turn out poorly. And when voir dire is over and you’re talking to the group you helped select, you use what you learned in voir dire to do a better job of talking to them, just as you have better conversations outside the courtroom with people you know a little about.

That’s not science. But it isn’t voodoo. I believe in voir dire.