It is essential to question jurors about both the legal and factual issues. Before questioning jurors about legal issues, you must first educate them on the law. This is not only proper—it is necessary. A juror cannot meaningfully say whether they can follow the law if they do not understand it.
EXAMPLES OF LEGAL ISSUE QUESTIONS IN VOIR DIRE
- Explaining what the charge or claim requires the prosecutor or plaintiff to prove, and asking whether the juror could return a verdict based on those requirements.
- Asking whether a juror would automatically give more credibility to law enforcement officers, loss-prevention officers, or other authority figures than to other witnesses.
- Explaining the presumption of innocence, and asking if they could properly apply it?
- Asking whether a juror would hold it against the defendant if the defendant chose not to testify in a criminal case.
It is also important to question the jury about factual issues to determine if they would be biased based on their previous life experience, understanding of Normal Human Behavior, Or The Context Of The Case that may relate to a specific factual issue. You will have to be careful when questioning the jury about factual issues to avoid trying the case in jury selection. These questions will often be asked hypothetically or broadly, and should avoid specific facts of the case. You will also likely want to ask the jurors about their background to see if they have any predisposed biases.
EXAMPLES OF FACTUAL ISSUE QUESTIONS IN VOIR DIRE
- Have you had any good or bad experiences with law enforcement/insurance companies?
- Would you assume someone is guilty because the they refused the breathalyzer?
- Do you think a person would only confess to a crime if he were guilty?
- Has anyone been charged with the same crime as the defendant?
Some attorneys will ask a follow up question about alternative theories to negative inferences. For example can anyone think of why a person would refuse a breathalyzer if he wasn't drunk?
CONNECTING WITH THE JURY
It is important to place legal issues into context in a way that resonates with jurors. For example, in a criminal case, asking a broad question such as, “The Constitution gives the defendant the presumption of innocence. Can you presume the defendant is innocent?” will almost always result in a generic “yes,” which provides little insight into the juror’s actual ability to apply the principle.
However we can ask a follow up question that will resonate with the jury. For example the jury will resonate more with the presumption of innocence if the question is asked the following way:
"Does anyone think I am guilty of these allegations? We can all agree the answer to that question is no, because you presume I'm innocent right? Can you give my client the same presumption of innocence you would give me?"
This approach helps jurors better understand what the presumption of innocence truly means and whether they can genuinely apply it.
