The Voir Dire
One of the most important functions of a trial lawyer is jury selection (Hemmens et al., 2017). Some attorneys contend that by the time the jury has been chosen, the case has in effect been decided. During the process ofjury selection called the voir dire (literally, “to see, to tell”), prospective jurors are questioned first, by the judge and then often by the attorneys representing defense and prosecution. The purpose of the voir dire is threefold (Jonakait, 2003). First, it is used to obtain information to assist in the selection of jurors and to ferret out any juror bias. Second, it enables the attorneys to develop rapport with potential jury members. Finally, there is an attempt by both sides to try to change the attitudes, values, and perspectives ofjurors (Klein, 1984). If a juror admits to a racial, a religious, a political, or some other bias that would influence his or her decision, the lawyers whose client would be harmed can ask the judge to excuse the juror for cause.
The hypothesis that the composition of the jury is crucial for a trial’s outcome is reflected in the process ofjury selection. Lawyers rely on their private judgments about how jurors are likely to be biased, and by using their peremptory challenges, they eliminate those who worry them most. Decisions to exclude or include a juror are based on a variety of considerations, including reactions to the juror’s looks and manner (Hoffman, 2004). Body language also influences the selection process (Dimitrius and Mazzarella, 1998). For example, sweating is considered a sign of a potential juror’s dishonesty, while crossed limbs (arms, legs, or ankles) and a stiff, rigid posture are viewed as signs of anger and volatility. Even television-viewing habits enter into the selection equation. For example, when the CSI-Crime Scene Investigation and Law and Order shows were popular during the last decade, potential jurors in criminal cases were closely questioned about their television-watching habits because of the possible impact their viewing could have had on cases without forensic data (Deutsch, 2006). Supporting lawyers’ concern over this impact, some research evidence finds that jurors do, in fact, expect forensic evidence to be available in a criminal case, even though many cases lack such data (Durnal, 2010).
For centuries, folklore, intuition, and unsystematic past experience provided the basis for jury selection (Jonakait, 2003). Scientific jury selection enabled this process to move to a more sophisticated and predictable level (Hans, 1992). Since the early 1970s, however, lawyers have made increasing use of social sciences and social scientists in jury selection (Lieberman and Krauss, 2010).