Jury Research Institute

Voir Dire

Pretrial Preparation Techniques for an Effective Voir Dire

Reading Potential Jurors’ Behavior

Bring along co-counsel, a paralegal, or a consultant, but do not try to conduct voir dire alone! Listening to jurors’ replies, observing their style of answering, noting their nonverbal behavior and recording their responses—all while trying to ask coherent questions and develop a rapport—is too much for one person to accomplish. You need someone else to record potential jurors’ replies and help you observe their behavior.

When to Keep an Eye on Them. It is absolutely essential to have someone observe the prospective jurors for you while you are asking the questions and to observe them yourself while your opponent is asking the questions. You may get the impression that a juror who frowns while you interview her is hostile to you. But if you do not observe that person’s behavior while opposing counsel interviews her, you have no way of judging whether your impression was correct. The juror may very well throw the same scowl at your opponent, perhaps signaling nothing more than indigestion or mere resentment at having been called for jury duty.

Reading the Nonverbal Cues. Observe the posture of the potential jurors. Do they look defiant? Are their arms crossed? Are they leaning forward, using gestures as they speak? Do they maintain eye contact while speaking? While they give their answers do they let their eyes roam? Do they appear intimidated? You cannot, of course, catalog and assess every nonverbal signal. But you should stay alert for behaviors such as looking away, leaning back, rolling eyes toward the ceiling, and sighing as if giving each answer is a Herculean effort. Look for the following cues:

• Are potential jurors’ eyes averted, downcast, or do they look directly at you and your client?
• Is a potential juror’s speech hedging, direct and clear, or flippant and sarcastic?
• Is a potential juror’s body withdrawn and apologetic, erect and relaxed, or still and defiant?
• Are the potential jurors’ hands fidgety, relaxed, or clenched?

Watch their Interaction. When you or your assistants observe the potential jurors, you should all try to look at them from a number of vantage points. One very important thing to assess about prospective jurors is their interaction with each other and the court. Try to discern the following about them:

• Are they "feelers" or "reasoners," sensitive or insensitive, emotional or unemotional, capable or incapable of empathy, sentimental or hard-hearted?
• Do they seem to be reclusive or sociable, isolated or involved?
• Do they have a narrow or a wide range of interests?
• Do they appear timid or adventurous, quiet or talkative, secure or insecure, vulnerable or confident, fearful of the world or imbued with a strong sense of personal safety?
• Are they introverted or extroverted, dependent or independent, hesitant or spontaneous, self-denying or self-indulgent, humble or arrogant? Do they convey the feeling that they view the world with trust or mistrust?
• Would you describe them as idealistic or cynical, naïve or clever?
• Do their actions appear deliberate or impulsive?
• Do their attitudes seem conventional or individualistic, rigid or flexible, indecisive or decisive?
• Would you characterize them as complainers or cheerful, lethargic or energetic, prone to excessive worrying or happy-go-lucky?