Voir Dire: Strategy and Tactics in the Defense of Social ...
Everything You Always Wanted to Know About Voir Dire … Dire Presentation 4_23_13.pdf · download...
37
Everything You Always Wanted to Know About Voir Dire but were Afraid to Ask Tuesday, April 23, 2013 Presented By the IADC Trial Techniques & Tactics Committee Welcome! The Webinar will begin promptly at 12:00 pm CDT. Please read and follow the below instructions: 1. If you have not already done so, please join the conference call. 2. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to mute your phone. 3. If you are on a conference phone, please move all cellular or wireless devices away from the conference phone to avoid audio interference. 4. If you have questions during the presentation, you may utilize the Q&A pod on the upper- right-hand side of your screen. You may type questions here and it will be sent to the presenter for response. If your question is not answered during the presentation, our presenter will answer questions at the end of the webinar. 5. Visit the “Files” pod in the lower-right-hand corner of the screen if you would like to download a copy of this PowerPoint presentation.
Transcript of Everything You Always Wanted to Know About Voir Dire … Dire Presentation 4_23_13.pdf · download...
Everything You Always Wanted to Know About Voir Dire but
were Afraid to Ask Tuesday, April 23, 2013
Presented By the IADC Trial Techniques & Tactics Committee
Welcome! The Webinar will begin promptly at 12:00 pm CDT. Please read
and follow the below instructions:
1. If you have not already done so, please join the conference call.
2. Mute your phone line. If you do not have a mute button or are on a cell phone, press *1 to
mute your phone.
3. If you are on a conference phone, please move all cellular or wireless devices away from
the conference phone to avoid audio interference.
4. If you have questions during the presentation, you may utilize the Q&A pod on the upper-
right-hand side of your screen. You may type questions here and it will be sent to the
presenter for response. If your question is not answered during the presentation, our
presenter will answer questions at the end of the webinar.
5. Visit the “Files” pod in the lower-right-hand corner of the screen if you would like to
download a copy of this PowerPoint presentation.
Type your questions for presenters here in the Q&A Pod
Click on the file name to download this Power Point or any referenced documents
IADC Webinars are made possible by a grant from The Foundation of the
IADC.
The Foundation of the IADC is dedicated to supporting the advancement of
the civil justice system through educational opportunities like these Webinars.
For more information on The Foundation, visit www.iadcfoundation.org.
Presenters
Clint Saxton Federal Express Corporation
Memphis, TN [email protected]
Elizabeth Ryan Coats Rose
New Orleans, LA [email protected]
The Importance of Voir Dire: Creating a
Critical and Lasting Impression
• Voir Dire is your best opportunity to create a likable client
• You must use Voir Dire to ensure that you
empanel jury that does not harbor bias or prejudice towards your client
Tension Between a Party’s Constitutional
Right to an Unbiased Jury vs.
A Person’s Inability to Completely Check
his or her Biases at the Courthouse Door
The Art of Voir Dire: Eliciting Bias and
Prejudice to Protect your Client
• Attire
• Body language/gestures
• Voice inflection
• Word choice
The manner in which you conduct Voir Dire requires a delicate balance so you do not risk tainting the entire jury
panel.
Objecting to your Opponent’s Voir Dire
• You must object to questioning that goes beyond voir dire and hurts your client
• By asserting the necessary objections, you lay the groundwork for mistrial and appeal
Strikes for Cause
• Burden is on the questioning attorney to demonstrate basis in law to disqualify a juror for cause
• Arises most effectively during a common sense dialogue with prospective juror
Statutory Disqualification
List • Familiarize yourself with your jurisdiction’s statutory
disqualification criteria and keep checklist with you
• Provide a copy to the court and counsel when making a record
Scope of Juror Disqualification –
Striking a Juror for Cause
• Based on relationships and knowledge
• Family relationships by blood or marriage
with an attorney or staff usually results in
automatic disqualification
• Gray area – family relationship to a witness,
expert, or police officer.
– Determine the nature of the relationship and
number of contacts the juror has had with the
witness
Social Relationships
• Very few grounds for disqualification
• Use advocacy skills to determine the extent of the relationship and cast it in a light to provide grounds for disqualification
• May require additional questioning in chambers if you cannot obtain candor from the potential juror
• Pay attention to the potential juror’s demeanor and non-verbal reactions – you can raise these issues with the judge later outside the presence of the potential juror
Do Not Make Any Assumptions During Voir Dire
• Failure to conduct specific voir dire to elicit specifics about relationships may result in a
waiver, and thus you could be left without an
adequate basis for a mistrial or reversal
Professional Relationships
• Commonly arises with medical expert witnesses
• No clear cut rule – you have an obligation to make a
record to scope out the breadth and significance of
a prospective juror’s relationship with a witness
• While many judges will excuse for cause due to a
professional relationship, at least one case has
upheld the juror being empaneled
Professional Relationships
• Case of prospective
juror who was the
former patient of
defendant
physician
– Physicals only
– Had not seen
defendant in years
– Said she could be
impartial
• Case of prospective
juror’s wife who was
a current patient of
medical witness
– Juror did not have
an opinion about
the witness
– Said he could
“maybe” recognize
him if he saw him
Ability to Replenish Jury Pool
• A court’s seating of a questionable juror will more likely be upheld on appeal if the court is drawing from a small pool
• It is important to record: – the number of potential panel members called
– the number of excused members for medical or other circumstances
– the final number of group from which the panel is chosen
The Knowledge Factor:
Mass Communication • Familiarity with a case is not sufficient for
automatic disqualification, particularly if the case has been in the news
• Attorneys must: – ascertain potential jurors’ occupations
– determine if potential jurors claim contact with a witness or a party, and the nature of that contact, how long that contact has occurred
– probe a potential juror’s willingness to “research” an issue, particularly if it relates to his or her profession
Difficulty in Flushing Out
Preexisting Bias or Prejudice • Getting beyond a potential juror’s facade of
“Yes, I can be fair and impartial.”
– Delve into a potential juror’s background as
it relates to your case
– Take advantage of this single opportunity to
speak directly with the jury pool, if allowed
by your jurisdiction
– Critical moment in your
case – don’t be shy
Juror Personality Traits
Avoid the Angry Juror – whether it is
indignation, anger, or rough edge. These
jurors will be likely to strike out and hurt a
defendant.
Social Media’s Impact on Jury
Selection
• Pew Center on Global Attitudes
Project Survey – 50% of Americans surveyed use Facebook
• 80% are ages 18-29
• 59% are ages 30-49
• 28% are ages 50 and up
– 47% use social networking
to express views about
community issues
– 37% use social networking to express views
about politics
You Have the Right to Ask Whether
Potential Jurors Use Social Networks
• Good Social Media Voir Dire Questions
– What social networks do you use?
– What topics do you post or comment about
most often?
86% of Americans have cell phones, so
ensure that potential jurors are not using
them to access social networks during Voir Dior or Trial
• Of these cell phone users, 72% use them to text
• 50% use their cell phones for internet access
• 60% use their cell phones to access social networking sites
● Make sure that your judge has
a standing order banning the use
of cell phones during Voir Dire
and Trial.
NYC Bar Association Committee on
Professional Ethics Opinion #843 –
September 2010
• Attorneys can use social networking sites such as
Facebook to research potential/sitting jurors
– Attorneys are barred from communicating with
jurors
– Communications such as friend requests or other
similar invitations may qualify as violations of
Professional Conduct Code
– Attorneys cannot deceive
jurors by pretending to be
someone else online
Search Firms are Bound by the Same
Rules as Attorneys with Respect to
Social Networking Contact
• It is appropriate to view information a
prospective juror makes public
• Any juror misconduct, such as
expressing opinions or sharing trial
information on social networking
websites during trial or voir dire,
must be disclosed to the court
• Once a jury is discharged, communication
restrictions are usually lifted
Why Use Analogies?
• Indoctrination from the Bench
• Affirmation of Favorable Legal Principles
• Introduction of Themes
Propriety of Use
• Wide Discretion of Trial Court – State and Federal Court
• Legal Principles – Analogies are non-factual hypotheticals relating to legal
propositions (“core issues”) and are therefore proper.
Blevins v. State, 766 So. 2d 401 (Fla. 2nd DCA 2000).
• Hypotheticals – “To the extent hypothetical questions involve the facts of
the case they are not allowed. However, it would appear
the law is otherwise when the hypothetical does not include the facts of the case. . .” Blevins v. State, 766 So.
2d 401, 402 (Fla. 2nd DCA 2000).
Propriety of Use (cont.)
• Plaintiffs
– Difference between Beyond a Reasonable
Doubt and Preponderance of the Evidence
– Damages
• Criminal Defense
– Beyond a Reasonable Doubt and Presumption of
Innocence
Practical Application
Introduction – David v. Goliath
Legal Principles
• Fair and Impartial
– Example: Sports, Food, Family
– Worse Jurors
– Confirmation by All
– Reasons (long time, subconscious, other
side)
– For Cause Challenges
Legal Principles (cont.)
• Corporation on Equal Footing
– Example: Sporting event, tennis,
basketball
– Confirmation
– Jury Instruction
Legal Principles (cont.)
• Business Judgment Rule
– Hiring: Best Fit
– You or a group of folks
– Resume Only
– Hire without Interview
– Look good on paper, but. . .
– How do you feel about proposition that an
employer can make an employment decision for
any reason as long as not based on
discrimination?
Legal Principles (cont.)
• All Proof Presented
– Example: Boys and Momma
– Confirmation
– Why
– Instruction
Legal Principles (cont.)
• Sympathy (Empathy)
– How many have submitted job
applications and resumes?
– Were you truthful? Why is that important?
– Character
Themes
• Best Fit
• Longevity on the Job (Over-qualified)
• Untruthful Resume
Questions for Presenters?
Clint Saxton Federal Express Corporation
Memphis, TN [email protected]
Elizabeth Ryan Coats Rose
New Orleans, LA [email protected]
Everything You Always Wanted to Know About Voir
Dire but were Afraid to Ask Tuesday, April 23, 2013
Thank you for Participating!
To access the PowerPoint presentation from this or any other IADC Webinar,
visit our website under the Members Only page (you must be signed in) and
click on “Past Webinar Materials,” or contact Melisa Maisel at
