On Legal Ethics

Voir dire is the only opportunity lawyers have to actually enjoy a dialog (as opposed to a monologue as occurs during opening and closing statements) with the jury. As such, it is wise to strategize your time so as to maximize your credibility and effectiveness, and minimize the opportunity for objection and/or reprimand by the court. The following are several ethical issues to be mindful of as you build that great rapport with your prospect triers of fact. Although California does not follow the ABA Model Rules, such standards are persuasive when there is no California Rule of Professional Conduct on point. In addition, lawyers with a multi-jurisdictional practice should realize that virtually every other state follows the ABA Model Rules, so they should be familiar with the Rules and Standards for Criminal Justice.

ABA standards for criminal justice -- Defense Function 1. Standard 4-7.2 Selection of Jurors states in pertinent part:

(a) Defense counsel should prepare himself or herself prior to trial to discharge effectively his or her function in the selection of the jury, including the raising of any appropriate issues concerning the method by which the jury panel was selected and the exercise of both challenges for cause and peremptory challenges.

(c) The opportunity to question jurors personally should be used solely to obtain information for the intelligent exercise of challenges. Defense counsel should not intentionally use the voir dire to present factual matter which defense counsel knows will not be admissible at trial or to argue counsel's case to the jury.

The ABA standard for prosecutors is effectively the same; it is Standard 3-5.3, Selection of Jurors.

Common allegations during voir dire

While California has not adopted the ABA Rule requiring lawyers to report certain types of professional misconduct (ABA Model Rule 8.3), lawyers in California should nonetheless be aware of frequent objections made during voir dire. Some of the most common involve arguing your case, appealing to passion or prejudice, and vouching for your credibility.

Information or argument

The purpose of jury selection is to ethically and legally gather information about your jurors, not to argue your case. It is permissible to weave your theme into voir dire to some extent, but attorneys are warned not to ask questions that attempt to expose jurors to facts that will not come into evidence, to put a spin on the evidence, or to ask jurors to prejudge the evidence. This does not mean that you are not permitted to educate the jury about the facts of your case in some fashion. Many of the details in this regard will have been discussed with the court prior to voir dire. Also remember that discussing too many facts of your case pre-trial may backfire for other reasons. For example, many of the anticipated facts may change during trial, and the direction or theory of your case also may change as a result. Some jurors are very good at remembering what you told them during voir dire and may be reminding their fellow jurors during deliberations about your failure to deliver the goods as promised.

Appealing to passion or prejudice

Jury selection is not an opportunity to precondition jurors unfairly. It is improper to present information in voir dire designed to appeal to the passion or prejudices of the jurors, or to otherwise inflame their emotions. This is another area you would be wise to discuss pre-trial, especially if one side represents a particularly sympathetic defendant, or key witnesses are particularly unattractive due to drug use or prior criminal convictions. Best to have already litigated whether or not such "dirt" about the parties or witnesses will be admissible in the trial in the first place, because jurors are unlikely to forget such interesting facts, even if they are specifically instructed to do so.

Vouching for your own credibility

As the trial lawyer, you are not a party or a witness. Consequently, it is not your job to argue your own credibility. Vouching is improper in all stages of a jury trial, from voir dire to questioning witnesses to closing argument. Make sure you ethically try your case based solely on the evidence presented. Do not try to ingratiate yourself to the jury by telling them about how honest, religious, experienced or sincere you are.

Please tune in next month for our continuation of our Jury Selection series.