"Voir dire" is the process of selecting a jury in a trial. See, Sec. 805.08, Wis. Stats. Procedurally, the court summons a number of persons from the community to court. In Milwaukee County the random process is accomplished by using drivers license records. The group of people that reports to the court is collectively called the jury panel and its individual members are veniremen. The court and the lawyers are then permitted to question the panel members. The judge possesses wide discretionary power over how the questioning proceeds and there is a wide variation between individual judges as to what is permitted. By statute the questioning must be intended to determine the venireman's qualifications to serve. The appellate courts have explained this to mean: (1) statutory bias (i.e. the panel member cannot have a financial interest in the case and must be a legal resident of the county; (2) subjective bias (i.e. the jury believes in his or her own mind that he or she cannot be fair in this particular case; and, (3) objective bias (i.e. even though the juror says he can be fair it may be said that under an objective standard the juror cannot be fair). A panel member who exhibits any of these three forms of bias must be struck "for cause"
Thereafter, the plaintiff and the defendant will each have a number of peremptory strikes. The number of strikes depends
A theory of defense is like a game plan in football- it informs every decision made during the course of the trial from the opening statement, to the objections, to the closing argument.
upon the type of case and whether an alternate juror will be employed. The parties may use a peremptory strike to remove any person they choose from the panel. The party is not required to explain why a certain person was struck. There is one exception to this rule, though, and that is where it appears that a party is systematically eliminating persons from the panel based only on their race or gender.
After all strikes have been exercised there must be remaining a jury of twelve (plus one or two alternates). In some civil cases a jury of six is permitted by statute.
Once the jury is chosen the court administers an oath to the panel. Once the jury is "sworn" jeopardy attaches and if the defendant is acquitted or if a mistrial is declared because of prosecutorial misconduct the defendant may not be retried. For example, see this motion to bar a retrial on double jeopary grounds:
What is your theory of defense?
Before beginning any criminal jury trial it is absolutely imperative that the attorney and the client discuss and agree upon a theory of defense. A theory of defense is nothing more than a statement that describes why the jury should return a not guilty verdict. A theory of defense is like a game plan in football- it informs every decision made during the course of the trial from the opening statement, to the objections, to the closing argument. There is no stage of the trial, though, where it is more important to have a cogent theory of defense than it is during the voir dire process. Although this article is not intended to be specific instruction on how to conduct voir dire, it will provide the general framework for conducting an effective voir dire in a criminal case.
Before voir dire the theory of defense ought to be written in a paragraph form like this: On July 4, 2050 the defendant, John Doe, was at a Milwaukee tavern drinking a beer with his friend and talking to several other people. The victim, Bill Winer, who was very intoxicated, came up behind Doe and asked him, "What the hell do you think you are doing? She is my girlfriend." Winer turned and explained that he did not know what Winer was talking about. At that point Winer cocked his arm back as though he were about to punch Doe in the face. Instinctively Doe grabbed his beer mug and struck Winer across the cheek before Winer could swing. At all times Doe was acting in self-defense.
This written theory of defense, as you will see below, colors the remaining voir dire process.
Who are we looking for as jurors?
Now that we know the theory of defense we can begin thinking about what sort of person do we want on our jury. This analysis is plainly an art and not a science. Developing a juror profile is based largely on intuition developed by the lawyer over many years of experience; however, anyone can do it. What sort of person would be likely to accept Doe's theory of defense? The answer, obviously, is people who may have been in a similar circumstance at some point in their life. A good start would be to look for young men who have had to deal with drunks in their lives.
An equally helpful question is, "Who do we not want on our jury?" A good start would be persons who believe that violence is never the answer- for example, teachers, principals, nurses, and so forth.
Asking youself these questions will permit you to focus your questioning on those persons you may want on your jury as well as those you may want to remove either for cause or by peremptory challanges.
How to question veniremen
There is a simple rule for questioning jury panel members: Ask your question in the imperative and then follow up with an open-ended question that requires an explanation. For example: Ask a panel member, "Mr. Johnson, when was the last time you encountered a drunken person?" If the juror says something like, "I have never encountered a drunken person. I don't go to places like that," this was a good answer for us because we now know he is not someone we want on the jury. More likely, though, Juror Johnson will say something like, "I was at the Brewer's game last week and there was this guy in beer line ahead of me that was so drunk that he dropped his money on the floor and didn't even notice it." Then you should follow up with a question that requires an explanation like, "Tell us what happened when he ordered his beer." The juror will then say something like, "The idiot gets up to the counter and orders four beers. When the girl behind the counter brought the beers the guy starts looking around and patting his pockets. We all missed half an inning while this goof looks for his money."
This was a great answer for us. There was a lot of useful information in the answer. It told us that this panel member is annoyed by drunken people. He recognizes that such people behave like "idiots." The beauty of this strategy of questioning jurors is that the prosecutor can do nothing about it. Even though the question appears to have nothing to do with the juror's qualifications to serve as a juror the district attorney will never object. Panel members, like everyone else, love to talk about themselves. If the district attorney were to object you can rest assured that the prosecutor has made an enemy of this panel member. The panel member is likely to think that the prosecutor thought the story was boring or unimportant.
Of course, if there is a panel member who never raises his or her hand, or who gives short, curt answers to your questions, this response is full of informantion for us, too. This is plainly either a person who does not want to be on jury duty or who is hostile toward the defendant without having heard any evidence. We now know that this is a person we do not want on the jury.
Given the dynamic nature of voir dire in state criminal cases, then, it is not helpful to provide same voir dire questions for criminal defense lawyers. In a state court criminal case, there are no "best voir dire questions" to ask. However, if you are looking for sample voir dire questions, the following section on voir dire in federal court may be of interest to you.
Voir dire in federal trials
Voir dire in federal court is very different than it is in state court. In federal court, the judge questions the jury panel. Most federal judges will require the attorneys to submit a list of proposed voir dire questions; however, most judges will not permit the attorneys to question the jury panel directly. The idea, of course, is to craft your voir dire proposed voir dire questions in such a manner as to get at the same sorts of information you would seek if you-- rather than the judge-- were conducting the voir dire.
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Milwaukee criminal defense attorney Jeffrey W. Jensen, of the Law Offices of Jeffrey W. Jensen, a Milwaukee law firm with offices located at 735 W. Wisconsin Avenue, Twelfth Floor, Milwaukee, Wisconsin, has represented persons throughout the State of Wisconsin. If you will face felony charges in either state court or in federal court you should call 414.224.9484. Attorney Jensen regularly appears in Milwaukee County (Milwaukee criminal defense lawyer), Waukesha County (Waukesha criminal defense lawyer, Brookfield criminal defense lawyer), Washington County (West Bend and Germantown criminal defense lawyer), Racine County (Racine criminal defense lawyer), Kenosha County (Kenosha criminal defense lawyer), Brown County (Green Bay criminal defense lawyer), Fond du Lac County (Fond du Lac criminal defense lawyer), and Winnebago County (Oshkosh criminal defense lawyer)
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