The art of trial advocacy

Army Lawyer, June, 2001

(1.) An excellent source of insight into jury selection is BENNETT'S GUIDE TO JURY SELECTION AND TRIAL DYNAMICS IN CIVIL AND CRIMINAL LITIGATION (Bennett & Hirschhorn ed., 1993).

(2.) Having to record the responses after each question sometimes has this effect. You can avoid this by changing your tone and voice inflection with each new question.

(3.) You may also want to ask the military judge to allow additional questions in the panel member questionaires. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 912(d) discussion (2000).

(4.) Only after an informative voir dire will you be prepared to exercise challenges against members. See United States v. Smith, 24 M.J. 859, 861 (A.C.M.R. 1987), wherein the court held that the "standard for measuring the legitimacy of voir dire is a question's relevance in the context of laying a foundation for possible challenges."

(5.) Do not forget the numbers game. Always be conscious of the number of members and how many votes are required for a decision in your case.

(6.) The Supreme Court held in Powers v. Ohio, 499 U.S. 400 (1991), that voir dire is "the juror's first introduction to the substantive factual and legal issues in a case."

(7.) If you hide a problem or the panel perceives that you were not honest with them, it could resurface during deliberations when you will have no input. It is much better to bring out such an issue in voir dire, where you can control the discussion and know the concerns of the members. If the problem is too much for a member to be fair and objective to your theory of the case, you will know he should not sit on the panel and you will be able to do something about it.

(8.) The author is an individually mobilized augmentee assigned to The Judge Advocate General's School, U.S. Army.