Further Readings
Posey, A. J., & Wrightsman, J. S. (2005). Trial consulting.
New York: Oxford University Press.JURYREFORMS
Over the past 15 years, courts have begun implement-
ing a host of reforms to the jury system in response to
growing criticism about jurors’ competence to decide
cases. Of particular concern was the ability of jurors
to set aside preexisting biases and to understand
increasingly complex evidence and legal principles.
This entry describes the efforts undertaken by the
courts to address these concerns. In particular, the sec-
tion on voir dire focuses on efforts to elicit complete
and candid information from prospective jurors dur-
ing jury selection while balancing competing interests
in courtroom efficiency and juror privacy. The second
section focuses on the techniques employed by judges
and lawyers during trial to enhance juror comprehen-
sion and performance.Voir Dire
The process of selecting trial jurors from a panel of
prospective jurors is called voir dire, a term derived
from 14th-century legal French, which, loosely trans-
lated, means “to speak the truth.” Typically, voir dire
consists of a limited question-and-answer period in
which the trial judge and attorneys examine prospec-
tive jurors to determine if they can serve fairly and
impartially on that trial. If the judge concludes from
this examination that a particular juror has life experi-
ences, opinions, or attitudes that would prevent him or
her from serving impartially, that juror will be
removed “for cause.” After all the “for-cause” jurors
have been excused, the attorneys have the opportunity
to remove those jurors who they suspect may be pre-
disposed against their clients by using a statutorily
defined number of “peremptory challenges.” After all
the for-cause and peremptory challenges have been
executed, the jurors who remain are sworn as the trial
jurors. The amount of time needed to select a jury
varies according to the type of case to be tried (e.g.,
felony, misdemeanor, civil), the legal requirements
and mechanics of voir dire, and the local legal culture,
but it generally ranges from 1 to 3 hours.A number of concerns about the voir dire process
have risen in recent years. Some of these focus on the
legitimacy of the criteria that judges and attorneys
employ when deciding to remove or retain jurors. Most
often, these debates take place in the context of pro-
posals to reduce the number of peremptory challenges
in order to minimize the opportunity for attorneys to
discriminate on the basis of race, ethnicity, or
gender—a practice ruled unconstitutional by the U.S.
Supreme Court in Batson v. Kentucky (1986) and its
subsequent progeny. The counterargument by the prac-
ticing bar is that peremptory challenges are needed as
a remedy for the failure of trial judges to grant chal-
lenges for cause, even when a juror’s responses to voir
dire questions indicate bias or prejudice. Thus far,
Maryland is the only state to successfully reduce the
number of peremptory challenges, and that legislation
was driven as much by cost considerations as by con-
cerns about the discriminatory use of peremptory chal-
lenges. However, several other jurisdictions—notably
California, New Jersey, and the District of Columbia—
are seriously considering legislation that would sub-
stantially reduce the number of peremptory challenges.
Other proposals for improving voir dire focus on
the efficacy of the voir dire process in eliciting candid
and useful information from jurors. Empirical studies
have repeatedly found that up to one in four prospec-
tive jurors fail to disclose case-relevant information
during voir dire. In some instances, jurors are reluc-
tant to reveal personal or sensitive information to a
courtroom full of strangers. In other instances, jurors
are unwilling to disclose information that they believe
is not relevant to the case. Often the mechanics of the
voir dire process—for example, whether the judge or
lawyers question the jurors, whether jurors are told to
raise their hands or respond orally to questions—send
subtle messages about the judge’s desire, or lack
thereof, for complete disclosure by jurors.
Attorney-conducted voir dire, which is the predom-
inant practice in most state courts, but not in federal
courts, is considered the better practice insofar as jurors
are more likely to respond with candid, rather than
socially desirable, answers to questions posed by
lawyers rather than judges. Moreover, attorneys typi-
cally are more familiar with the nuances of the case and
thus are in a position to question jurors about issues that
a judge might not immediately view as relevant.
Another technique that is gaining in popularity is the
use of written questionnaires asking either general
background information or case-specific information,Jury Reforms——— 417J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 417