written by guest blogger and NITA faculty member Cynthia McCullum
As a young attorney, I conducted voir dire as if I was looking for a new friend. I asked prospective jurors about their background and their interests in a conversational tone and would float my theme in the gentle flow of conversation.
I remember a domestic assault case in which, by the time I finished my voir dire, I felt that I had picked a panel of potential lunch dates! We were getting along famously, so in my mind I had the perfect jury. These jurors nodded with me during my opening statement. They closely followed my cross-examinations. I knew I had them won, right up until the facts started coming in. As the victim testified about the assault she suffered at the hands of my client, imagine my surprise when I looked over and saw several jaws had dropped in horror. Rarely had I found such betrayal in any friend’s eyes. It seemed that every juror turned toward me as if to say, “To think we liked you.” Hmm, I knew those jurors were not my friends anymore. Luckily for the defense, the complaining witness began testifying to inadmissible evidence and my motion for a mistrial was granted.
I learned from that mistake. At that time, I had picked twenty or so juries and I thought that I knew what I was doing. Unfortunately, I had been making friends and not picking jurors.
With the next panel I saw, I listened to their responses to the Court and I watched their body language. I talked to them more about the criminal justice system and their experiences with friends or relatives who had been involved in the system or arrested for different crimes. We discussed how they made up their minds with limited information or if they followed criminal cases in the news. I also asked about CSI shows and what they thought of police shows in general. I focused more attention on the panel as decision makers in my case and less on how much I liked them. That panel returned a quick not-guilty verdict
As the jury was excused and filed out, one juror felt compelled to tell me that she didn’t like me. “No,” she said, “I don’t like you, but I agreed with everything you said about the case.” My first reaction was to answer, “What, you didn’t like me?” Instead, I realized that I didn’t want a new friend. I wanted a juror who would carefully and fairly consider all of the evidence, so I said, “Thank you.”
So, next time you voir dire, deliberate who you don’t want on your panel. Avoid someone who resembles the plaintiff or the defendant, or who will identify with the other side. Tailor your questions to address the particular issues around violence, injuries, weapons, or damages. Talk about your tricky issues. Listen closely to the answers. You may find jurors with different attitudes, experiences or world views. Look for jurors who will be fair to your client or your cause. Don’t look for new friends.
Cynthia McCollum is a Hennepin County Public Defender. She has tried over 100 jury trials and worked on over 25 homicide cases. McCollum has been an adjunct professor at William Mitchell College of Law since 1987 and Hamline University Law School since 2003. She has taught a variety of classes including trial skills, advanced litigation skills, criminal procedure, and appellate advocacy. McCollum has lectured on domestic abuse defense tactics, jury selection, and jury selection ethics with Batson issues in CLE presentations in several locations around the country. McCollum has been a NITA co-director in MN for several years and a faculty member since 1990. McCollum has published a law review article on enhancement of juvenile adjudications.