By Hon. (Ret.) Ken E. Adair
Start Framing Your Important Questions From Square One
Video Transcribed: A lawyer friend of mine and mentor here in Tulsa who teaches about jury voir dire taught me years ago about how to ask questions in jury voir dire in a way that will not identify the jurors that the other side wants to get rid of, that every question can be framed in a way to identify who you might want to get rid of and you can do it in a positive way. Always ask positive questions.
The system requires that at the end of the criminal trial, that you must acquit my client even if you think my client did the crime. This isn’t a who done it. This is did the state prove beyond a reasonable doubt each and every element of the crime?
This is a case where you have to acquit my client even if you think my client committed the crime, at the end of the day, unless the state meets its burden. Is there anybody among you that doesn’t understand or agree with that process?
Now, I’ve just stated what the process is. I’ve asked the question in a way that somebody’s going to raise their hand, “If I think he did it, I’m going to find him guilty.” You’re going to identify that person, but you also pay very close attention.
One of the things that I do, and a lot of lawyers that I know do this, is when I walk up to the jury the first time, and it’s uncomfortable the first time you do it, and it’s one of the most meaningful things you’ll do is you walk up and you say, “May it please the court, opposing counsel, ladies and gentlemen of the jury,” and you walk up. I just nod, I just look and nod at everybody in that jury panel, and I try to have an individual connection with everybody in the panel.
You have to do it quickly, but you get used to what their facial expressions are. Some people have a naturally subdued expression. Some people have an intense expression. Some people have a melancholy expression. Everybody has their own facial expression.
When you ask a question like that and you look at the jurors, anybody here think that they cannot set my client free even if you think my client’s guilty if the state didn’t meet its burden, you look at everybody and you get somebody that raises their hands and you know you can do some further inquiry to find out if that’s somebody you need to get rid of.
You also get a chance to look across at the jurors that you’ve made a connection with and find out whether the look on their faces… They’re looking at you puzzled, like, “Are you kidding me?”
Because that’s not a raising of the hand, but I got news for you, facial expression of are you kidding me is just as good as a hand raise on a question like that. The question is framed in a way to identify the people that you might need to talk to more about a peremptory strike, or maybe even a strike for cause.
You could ask that question in a slightly different way. Now, if the state puts on their case and does a great job and, use a football analogy which I’ve heard some lawyers use, one of my best friends uses this, they get all the way down and they’re about to go in the end zone, they get tackled.
They’re six inches shorter of the goal line. Are all of you willing to not give them the touchdown because they’re six inches short? They just didn’t quite meet the burden. Some question like that, are all of you willing to do that? Then, somebody raises their hands, like, “You bet, you bet.” you’ve just identified somebody that the other side might want to get rid of. Right?
There’s a way to frame… And it’s the same question, it’s just framed differently. Framing issues, framing questions is one of the most important parts of trying a jury trial, framing your questions. It takes a little preparation. You think about what you want to ask.
Before you ask a question, think, do I want to ask this in a way that is going to reveal to the other side who they want to get rid of? Or do I want to ask questions that are going to identify people that I need to explore further with? The answer is always you frame the question in the way that is going to direct the responses toward people you need to explore more with.
I hope this has been helpful. I hope it wasn’t confusing. It’s a real simple concept, but to put it in practice takes a little bit of work and it becomes natural at some point. Thank you for listening. I look forward to talking to you again, and thank you very much.
I’ve sat at the feet and studied with some of the greatest trial lawyers and titans in this country. I’ve learned from some of the members of the inner circle of advocates. You can’t be where I’ve been and studied with who I’ve studied with and shared a courtroom with the people I’ve shared them with for over 20 years and not know a few things about winning successful jury trials.