Je T'Aime Voir Dire

With jury selection having just taken place in the trial of Derek Chauvin, I want to take this opportunity to opine on how much I miss this part of trials.

I love voir dire, in part because it’s one of the few instances during a trial where you get to slug it out around culture war topics with a free hand. When I selected jurors (back when jury trials happened), I necessarily had to rely on crude stereotypes. So as a defense attorney, my preemptory strikes necessarily were used on cops and firefighters, and anyone else within the normie law&order penumbra. Every once in a while, I'd get a stand-out juror (from my perspective) who I knew would get struck by the prosecution, but their presence would be valuable because I'd use whatever controversial statements they made as an excuse to repeat it back to the pool.

Voir dire is also an opportunity to reframe the discussion and also subtly inject your own preferred narrative. Jury trial is much more restrictive about what you can and cannot say, but gloves are off during voir dire. Basically the only thing that would piss off a judge and prosecutor is if you ask something like "Hey kids, do you know what jury nullification is?"

I once represented an illegal immigrant on their 2nd DUI charge. I recommended going to trial even though the case was a total loser because "fuck it, why not?". The guy was going to be deported anyways, and there's always a chance the rookie state prosecutors might fuck up somehow. I was put in a delicate position during voir dire; I wanted to screen out anyone who would be biased against my client by virtue of their ethnicity or immigration status, but I couldn't tip my hand and inadvertently announce his immigration status to everyone on the jury panel. So the way I went about it was lean on the obvious fact that he needed an interpreter.

Me: "As you have noticed, my client requires the assistance of an interpreter. Does anyone here think there are too many foreigners in this country?"

[this shows you an example of how blunt you can be during voir dire].

Of course I'm in the suburbs of a deep blue bastion, and people are way too polite to answer in the affirmative, but one brave soul demurred and gave me exactly the opening I was looking for.

Him: "Not all foreigners, but I do think there are too many illegal immigrants here."

Me: "Oh that's an interesting point, who else thinks there are too many illegal immigrants in this country?"

At which point half the venire raised their hands, and I hurriedly tried to mark up as many names as I could. I got to screen for people who had anti-immigrant sentiments without completely tipping everyone off that my client is an illegal immigrant. When the trial actually starts, what we'd be able to talk about would be strictly limited. The prosecutor can't bring up my client's immigration status (irrelevant and prejudicial), but obviously it's still going to be on the jury's mind. So under the pretext of screening for police bias, I asked the venire to imagine they were on vacation in a foreign country and how they'd feel if they were pulled over and were questioned in a foreign language. The point of the question was to remind them how stressful police encounters can be, but I gather that a nonzero portion of the venire perhaps assumed that my client was on vacation here when he got pulled over.

Voir dire is fun. I miss it.