After being asked if I thought it was possible to empanel an “unbiased” jury in the trial of George Floyd’s accused killer, I decided to use this column to provide an insider’s view of “voir dire,” the process used to select juries in our state and federal courts.
At the outset, let me be clear: there are no unbiased jurors because they are composed of people, and people are biased. I am. You are. Everyone is. That is why the Sixth Amendment guarantees a “… speedy and public trial, by an impartial jury …”
The founders did not overpromise, they knew “impartial” was the best human beings could do. After representing clients in numerous criminal and civil jury trials I know they were right — and that impartial juries deliver justice in the vast majority of cases.
And while each attorney in a case has a limited number of preemptory challenges they can use to dismiss a juror for any reason, including perceived bias, voir dire is truly the key to seating an impartial jury. It is the one opportunity I have to speak directly to a juror, peer into their soul, and determine if they are capable of setting their biases aside, listening to the evidence I present while giving my client a fair hearing. If I believe they are not, out they go.
This means, in essence, voir dire is not about selecting a jury — it is all about deselecting jurors.
I also use voir dire to influence jurors before the trial begins by telling stories that subliminally strengthen my case and/or weaken my opponent’s. For example, I will ask the jurors if they have children.
I then pose this scenario: you hear two of your kids fighting in another part of the house. You run into the room, Kid No. 1 says Kid No. 2 started it. Do you punish Kid No. 2 immediately or give him a chance to explain and then consider the evidence before deciding who was in the wrong? Most parents say they want to hear the whole story — and that is exactly how I want them to treat my client.
If the prosecution's case is dependent on witness identification I will ask jurors if they ever thought they saw a friend across a room and walked over to find that it was someone else? Of course they have, because we all have made that mistake. The seed is planted; the ID may not be reliable.
Here is why influencing jurors and gaining their trust and confidence before a trial even begins is critical: Studies show most people make up their minds about a case during opening arguments then spend the rest of their time in the jury box looking for evidence that validates their opinion.
I do everything I can during voir dire to gain that advantage.
The voir dire in the Floyd case took months. More than 300 potential jurors were asked to complete a 16-page questionnaire and were subjected to intense questioning by the judge, prosecutors and defense counsel.
The 12 men and women sitting in judgment of the most important case in recent memory are not unbiased, but if the process worked they are capable of and will deliver a fair and impartial verdict.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.