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Voir
Dire and Jury Selection
By Elizabeth Foley
INTRODUCTION
There are as many views on how to pick a jury as there are styles,
but it all relies on what one wants to accomplish in voir dire.
Traditionally, voir dire represented an opportunity to educate and
persuade the jury. In the 1960s, Kalven and Zeisel studied juries
in Chicago and concluded that jurors began making up their minds
from the earliest moments of the trial, and had decided the case
by the end of opening statements! Based on this research, Kalven
and Zeisel argued that since jurors began making up their minds
right away, lawyers should treat jury selection as an extension
of the opening statement. Therefore, the majority of voir dire should
be devoted to advocacy. In other words, voir dire is more about
arguing the case than it is interaction and gathering information.
Four decades later, this viewpoint still prevails.
There are, however,
other viewpoints that should be noted. For example, Wu and Shaffer,
both social scientists, studied juror decision-making and concluded
in 1987 that attitudes and biases that stemmed from prior experiences
were the most resistant to change during a persuasive appeal. In
other words, they found that jurors’ pre-existing attitudes
and biases shaped the way they viewed the evidence, which is a stark
contrast to Kalven and Zeisel's conclusions. Therefore, according
to Wu and Shaffer, attorneys should spend voir dire discovering
what people think about their case and the evidence because this
information will more likely determine the outcome than will, for
example, early persuasive appeals.
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