Mr. Gorbachev, Tear Down This Wall

I’ve always believed that voir dire in a criminal case is, in many ways, the most important part of a trial. It’s an opportunity to make a good first impression; to find out who is likely to accept the theory of the case; to disclose biases and prejudices and, importantly, to determine who can set them aside. I think it is interesting to explore peoples’ backgrounds and attitudes, to try and identify people with whom I can communicate and ultimately to get them on the jury. But to do that I need candid information. The usual criminal voir dire process often doesn’t produce that.

I begin each criminal trial with certain rebuttable presumptions:
1. Most jurors don’t want to be there
2. Jurors do not trust lawyers
3. Jurors hate crime
4. Jurors believe the defendant is probably guilty
5. If the defendant is a minority, jurors believe he or she is definitely guilty.
6. Jurors are afraid of defendants.

And so, getting jurors to the point where they can look at the facts objectively and buy into the process is tough. And that’s in the run-of the-mill case. In the emotionally-charged cases it’s even harder.

I’ve always found it’s difficult, though, to get the information I really want. It’s hard getting people to relax and open up. They are understandably on edge. There they are, in a foreign venue, confined to the witness box, a judge hanging over their shoulders, and a fancy-pants attorney standing 6 feet away, poking, prodding and indoctrinating in lawyer speak. It’s theater. And that theater gets in the way of what we’re really trying to do – get candid information. Everyone – lawyer, juror and judge – is aware that in some sense they’re playing a role in this production. That awareness conditions the dialogue and produces artificial results.

Lawyers on their feet are the worst. When we stand to speak, we suffer a Tourette’s-like malady that transforms ordinary conversation into a stilted vernacular that discourages effective communication. The potential juror, tapped in the box, either gives a response providing a desired quick escape from the process or a politically correct answer tailored to fit the courtroom audience, a kind of “I’ll tell them what they want to hear”. The usual process is bad theater, an ill-scripted playlet poorly performed by all. It produces artificial and unhelpful results.

But there is a better way to get the information we want. I recently tried a sexual assault case. It was a college date rape charge. The defense was consent. Getting people to candidly discuss sexual practices in a courtroom setting is a clumsy, self-conscious and uncomfortable exercise. The admitted sexual activities in this case, at least to a former altar boy trained in the Latin Mass, were, shall we say, unconventional and the concept of consent problematic. A voir dire conducted in the usual courtroom theater would be difficult and about as comfortable as former Congressman Weiner’s sexting press conferences.

This voir dire, though, was different. The judge saw and understood the difficulties. He allowed the attorneys to take down the theater’s “fourth wall”. By doing so, he changed an uncomfortable, unproductive interrogation into a candid conversation that was about as relaxed as it could be in a courtroom. The lawyers got to talk to jurors, not examine them. They were relaxed and so were the lawyers. We could talk about the sexual acts – the elephant in the courtroom – in a way that was open and candid. And, in the end, we received candid and forthright information to use in the selection process. It’s a process that works and works well.

Here’s how it goes. After the customary indoctrination, introductions and receipt of excuses, the venire is excused. Then, one-by one each juror sits alone in the jury box, not the witness stand, for individual questioning. The lawyers stay seated and question from their tables. No strutting. No posturing. The judge is on the bench, off to the side, and, as usual, fighting off boredom. The lawyers and the jurors are on the same level. What evolves is a conversation which produces genuine information which both sides can use effectively. Removing the fourth wall made it real, not theater.

This is a different way of selecting criminal juries. It’s a better way. With good lawyers who want information and who don’t waste time on obvious peremptories and challenges for cause, it’s efficient, effective and, as a bonus, fair to all. Maybe other judges should give it a try. After all it does involve liberty, and the constitutional principles designed to protect it. Where’s the downside?