The Art of Voir Dire

Q. Do you recall anything of the defendant's background? A. He's supposed to be an ex-con, isn't he? Q. You didn't have an opinion that this man was innocent, did you? A. You mean the--the defendant? Q. Yes. This man, Speck. A. I couldn't say. Q. But you did remember that he was an ex-con?

Embarrassment. No answer. Excused. And so, on to the next venireman in the subtle search for twelve jurors who could rightly claim to be "impartial" about the case of Richard Speck, accused of murdering eight student nurses in Chicago last July. Not one of the prospective jurors could claim that he had never heard of the case; each had to be examined closely by prosecution and defense to discover whether he had formed an opinion and how it might affect him in reaching a verdict. The selection process, called voir dire, ran through 27 days and 610 prospective jurors before the jury was finally picked last week. It served to dramatize the legal truism that in U.S. criminal practice the voir dire is often more crucial than the actual trial.

The Real Start. Voir dire is an art practiced largely in U.S. state courts. British judges simply call twelve veniremen at random without even asking their occupations. American federal judges usually do the questioning themselves. But in most state courts, lawyers are freely permitted to use voir dire not only to select jurors but to "condition" them. "Voir dire is really the start of a criminal trial," says F. Lee Bailey. "If you do it carelessly, you can lose a case by the time you get a jury together."

State criminal codes and common law empower judges to disqualify jurors for "cause" on a variety of specific grounds, such as opposing the death penalty in capital cases or simply admitting prejudice against either side. Because bias is hard to prove, both sides can also invoke a limited number of "peremptory" challenges (no explanation needed) that eliminate jurors on the merest hunch or suspicion of prejudice. Thus jurors may be rejected, rather than selected, in hopes that the twelve survivors are indeed biased--in favor of either side.

Reasonable Doubt. Rejection is only part of the process. Lawyers exploit voir dire as their only chance to make friends with individual jurors. They joke, flatter, hatch homilies and seek what Manhattan's Stanley Reiben calls "transference of identity." All the while, the defense attorney struggles to get across the law's presumption that a man is innocent until he is proved guilty beyond a reasonable doubt. As Houston's Walter F. Walsh points out: "Many jurors will not and cannot, within the confines of conscience, find a defendant not guilty just because there may be a reasonable doubt." To them, acquittal requires great uncertainty or even total proof of innocence.

Though no defense lawyer can eliminate all pretrial opinion, he can diminish it by asking veniremen exactly what they have read in the press--and then prod them to reconsider it entirely in terms of reasonable doubt. Even if they still show prejudice, the attorney may accept them: some people yearn to prove themselves unprejudiced. Moreover, lawyers commonly ask jurors in advance to guarantee disregard for this or that messy fact ("Will you disregard the defendant's adultery?"). Not for nothing does Percy Foreman devote as much as ten days to voir dire. "Once we chose the jury in the Candy Mossier case (see following story)," he says, "I knew we were in. They had promised to consider only murder as the crime on trial--not sex."

Death Verdict? To greater or lesser extent, all of these factors weighed in the Speck voir dire. For his part, State's Attorney William Martin, 30, took a cool approach. "Where the crime speaks for itself," he said, "it is not for us to seek the sympathy of the jurors." Though he was searching for the relatives of policemen, nurses and young girls, Martin mainly focused on reactions to the most important question: "Do you have any conscientious or religious objections to the death penalty?"

A "no" answer by itself did not satisfy Martin. He rejected many a positive-sounding venireman because his manner showed a sign of unsureness that might possibly aid the defense. To confirm it. he asked: "Would you sign a verdict of death?" Faced with that specter of personal responsibility, some veniremen backed down.

As Martin's senior by 23 years, Public Defender Gerald Getty assumed a worldly, fatherly air: "Look," he said at one point, "I'm charged with defending this guy, and I don't want twelve persons in there with fixed opinions, do I?" Man to man, he reasoned with would-be jurors. "And you," he said to one venireman, "would you have difficulty in presuming Richard Speck innocent?"

"No," said the man.

"Of course not," said Getty. "And you wouldn't want to just listen to the state's witnesses and make up your mind and say, 'That's it, I don't want to hear any more,' would you?"

"No."

"Wouldn't you want to be the kind of juror who'd be prepared to weigh all the evidence before making up his mind?"

"Yes," said the man, "that's the kind of juror I'd want to be."

Getty then went over all the possible verdicts Speck might receive, asking whether the venireman would be willing to sign "not guilty" if he was in doubt and whether he would accept a jail sentence instead of death if Speck was found guilty. The venireman insisted that he could sign "not guilty," and that he could agree to a jail sentence. Getty asked the question again; suddenly the man did a turnabout, blurting out that the only verdict he could accept was the death penalty. Excused, for cause.

How did Getty know the man's mind was made up? "Fingertips, fingertips," he said later. "You just have to sense it. This man was a killer, and I just had to get it out into the open." In his questioning, Getty appealed over and over again to pride, looking ahead to the moment when the jury retires to begin its deliberations. "You are going to reach a verdict out of the depths of your own mind and conscience, aren't you? You wouldn't let someone sway you?" Prosecutor Martin needs twelve unanimous jurors to win a verdict; Defender Getty needs only one stubborn holdout to hang the jury--and retrials often favor the defendant.

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