by: Dr. Ken Broda-Bahm
When you have the ability to ask your own questions in voir dire, make the most of them. Done well, attorney-conducted voir dire should create a balance between the goals of spotlighting high risk jurors and safely drawing themes from more favorable jurors. At the same time, the questioning process should build rapport and feel natural to both the attorney and to the panelists. When attorneys err, it is often in one of two directions. On the one hand, some attorneys will ask only tightly controlled (yes/no, or cross-examination style) questions that are designed to restrict free expression and minimize the risk that prospective jurors will taint the panel by sharing opinions and experiences that run counter to your message in the case. On the other hand, some attorneys will simply ask jurors what they think on topics relating to the case, giving equal voice to those whose views would help and those whose views would harm it. The first approach errs in learning too little, and in constraining the expression of those who will judge your case. But the second approach errs in potentially learning too much: creating the real risk that unfavorable jurors will not just be discovered, but will be given a soapbox as well.