VOIR DIRE QUESTIONS
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I. General Pointers for Jury Selection
II. Domestic Violence Voir Dire
A. Bias and Ability to Follow the Law
B. Violence in General
C. General Domestic Violence
D. Proving This Kind of Offense
E. Crime Against Society
F. Race/Ethnic Issues
III. Sexual Assault Voir Dire
Sample Questionnaire
A. General Sexual Assault
B. Consent
C. Case Relies on Victim's Testimony
D. Marital & Date Rape
E. Delays in Reporting
F. Victim Issues
G. Sympathetic Defendant
H. Intoxicated Victim
Coming soon: Stalking & Cyberstalking Voir Dire Questions
Note, the following questions are posted here to assist prosecutors in selecting jurors in cases involving crimes of violence against women. Not all questions apply to all cases. Also, every judge is different, and what is permissible in one jurisdiction may not be permissible in another.
These questions are suggestions, and are not necessarily intended to be all-inclusive. Some areas of questioning are not covered here, but should be addressed in every case where appropriate, including:
- Whether the panel knows any of the witnesses,
- Prior jury experience,
- Experiences with law enforcement, and
- Reasonable doubt
Some General Pointers:
- Develop a Theme. It is important to have a theme to your case. The theme should be used throughout the case, starting in the voir dire.
- Develop your own style. What works for one person may not work for another. Watch other prosecutors in voir dire to obtain ideas, but if the "style" or "routine" of another person doesn't feel comfortable to you, it won't go over well with the jury either. Do not be a fake… they can sense it. Likewise, the questions offered here are suggestions… perhaps rewording them, or creating your own, similar scenarios will work better for you.
- Identify yourself with the panel. "We are all in this together" is the touchstone for voir dire and presents a "We" approach to interaction and potential leadership.
- Link your voir dire to your closing argument. Plant the seeds of your closing the first time you talk to the jurors, then when you give your closing, they will have reached the same conclusions you are asking them to. Remind the jurors in your closing that, "You promised me during jury selection that you would…"
- Address and debunk rape (or other) myths. You should address and debunk rape myths starting with voir dire, the only time you get to talk with the jury panel.
- Use jury instructions to prepare for voir dire. The criminal jury instructions for your jurisdiction are a great resource to use when you prepare your questions. Identify what you must prove in your case, as well as what you do not have to prove.
- Address your weaknesses. Address (don't hide) what you perceive as your weaknesses, turning them into strengths or non-issues at the outset of the case, so you won't be perceived as hiding facts when they come out in trial.
- Have confidence in your case. Jurors can tell if you don't believe in your case. If you show by your words, body language, or lack of confidence that you wouldn't vote "guilty," how can you expect them to?
Voir Dire Questions for Domestic Violence Cases:
A. Bias and Ability to Follow the Law
- Do you have any feelings that crimes that take place in the home should not be prosecuted?
- Do you feel that family problems that lead to violence should be handled outside of court?
- Will you base your decision in this case apart from any feelings of sympathy for or prejudice against either the defendant or the victim of this case?
- Do you have a difficult time sitting in judgment on someone? If you were convinced of the defendant's guilt beyond a reasonable doubt, would it be difficult for you to vote that way because of religious, philosophical or moral reasons?
- Do you believe that if there are 2 different versions of what happened, you could never be convinced of either side beyond a reasonable doubt?
- What factors would you base your decision-making on when determining who is telling the truth?
- Can you assure the court that you can be fair and impartial to the defendant? Can you also assure the court that you can be fair and impartial to the State?
NOTE: Jurors that have strong feelings against domestic violence should not be excused for that reason. It is perfectly okay to have strong feelings against criminal behavior. The test is whether they can be fair and impartial in deciding whether the defendant committed the crime of which he is accused. (However, someone who has personal experience of a similar nature to the case (i.e. a survivor/victim) may be too emotional to handle hearing the case).
B. Violence in General
- Have you ever been involved in a physical altercation as a participant, victim, or witness?
- Have you or has anyone close to you ever been the victim of violence?
- Have you or has anyone close to you been involved in marital disputes that involved physical violence?
- Have you, any member of your family, or any close friend been involved in a dispute in which the police have been called?
- Have you ever notified the police to respond to a neighbor’s home because you thought a physical dispute was going on?
- Have you ever heard what you believe was a physical altercation taking place at a neighbor’s home?
- Have you had occasion to call the police for your own protection from physical violence?
- Have you had occasion to call the police to protect others from physical violence?
- Do you have strong feelings about use of violence?
- Have you ever experienced fear due to apprehension of violence?
- Is it ever okay to physically assault another person? (Hint: Answer is yes… in self-defense/defense of others ONLY)
- Have you ever known a normally pleasant person to become aggressive and violent/combative after consuming alcohol or drugs?
- Is there a difference between understanding why a person becomes violent and excusing that person's violence?
C. General Domestic Violence
- Do you feel that domestic violence cases — and by that I mean violence between persons in primarily romantic relations whether they be married, not-married-but-living together, dating — should be handled in the home?
- Do you feel that prosecuting crimes that occur within the family home:
-Is a waste of taxpayer’s money?
-Causes homicide?
-Is inappropriate compared with handling such matters privately?
- Have you or anyone close to you ever been involved in a family violence situation?
- Were there children present during the violence?
- Do you think that a family member has the right to hit or punch another family member (husband/wife, brother, sister)?
- Do you believe that the law allows family members to do so?
- Do you think that an assault in the kitchen is different from an assault in the street?
- Does it make a difference legally if a stranger breaks into your home with an axe vs. someone you know? Should it?
- Does it make a difference feeling-wise? What are the differences?
- Do you believe that a household has to have a "boss" that everyone else must obey? (Children and adults?)
- If "yes," what should happen to someone in that household when they don't obey the boss? Same for adults and children?
D. Proving This Kind of Offense
- Would you expect an assault between family members or persons living together to occur in a public place or in private at home? Why?
- Do you believe that the State of ______has a responsibility to prosecute persons who cause violence in the home even though the victim does not want to proceed either out of loyalty, love, fear or persuasion?
- Can you think of some reasons why a victim of domestic violence might not want to come to court to testify?
- Can you think of some reasons why a victim of domestic violence might not tell the truth on the witness stand?
- Do you think that if the victim does not want the case to proceed that the defendant should get a "free pass"? Why or why not?
- What does a person who assaults his girlfriend/wife look like? Can you always spot them on the street?
- Have you ever heard the term "wife beater"? What does it mean to you? (Note: "wife beater" is a slang term for tank tops with really low arm holes… if your judge will allow it, this might be a good way to open a discussion about what a DV defendant looks like.)
- Would it be fair to say that a person may be well liked and respected at work or in public, and have a completely different personality/persona at home?
E. Crime Against Society
- With DV being the #1 cause of injury to women (or a major cause of injury), does anyone feel uncomfortable with the state's decision to intervene even though the victim might not want to?
- Are you familiar with the phrases, “The victim dropped the charges” and “The victim pressed charges?”
- Do you understand that the People of the State of _______are entitled to prosecute the defendant for allegations of domestic violence irrespective of the wishes of the victim?
- Do you have any feelings that the government should not have the right to prosecute a case like this if the victim does not want the government to do so?
- Do you believe society should be any more concerned or any less concerned about violence between people who know each other than people who are strangers?
F. Race/Ethnic Issues
- Do you believe spousal abuse is confined to any one race or socioeconomic group?
- In evaluating your own ability to judge a case such as this fairly, do you feel you have any stereotypes in your mind of who commits violent acts and who does not?
Voir Dire Questions on Domestic Violence Developed by Casey G. Gwinn, San Diego City Attorney, modified and adapted by Matthew J. Wiese, Marquette County Michigan Assistant Prosecuting Attorney’s Office [1996]. Further modified and adapted by Tracy Bahm, Senior Attorney at APRI with assistance from Dan Johnson, Deputy Prosecutor for King County, Washington [2000].
Voir Dire Questions for Sexual Assault Cases:
Cases of Sexual Assault are obviously sensitive in nature. Asking prospective jurors about their past experiences with sexual assault should be handled as delicately as possible, taking care not to unnecessarily embarrass or upset the jurors. It is strongly suggested that a written questionnaire be used whenever possible for basic information. Those jurors indicating that they have some type of history with sexual assault… as a victim, suspect, family member of victim or suspect, etc. can then be questioned individually instead of in front of the entire panel.
Sample Questionnaire:
- Have you ever been the victim of a sexual assault? If yes, please explain.
- Have any of your close friends or family members ever been the victim(s) of sexual assault? If yes, please explain.
- Have you or any of your close friends or family members ever been accused of sexual assault? If yes, please explain.
- Have you, a relative, or a close friend ever had any contact with a rape crisis center or any other similar organization? If yes, please explain.
- Would you like to have any further discussion of your answers to these questions conducted outside the presence of the other jurors? ____yes ____no
A. General Sexual Assault Voir Dire Questions:
- Do you, a relative, or a close friend have any special training, knowledge, education, experience or expertise in the subject matter of sexual assault?
- Have you ever testified in a sex crime or sexual abuse case? Please explain.
- Will you have any difficulty sitting and listening to testimony concerning matters of a graphic sexual nature, and then discussing it with the other members of the jury?
- Is anyone uncomfortable hearing words like penis, vagina, penetration, and ejaculation? Do you understand that I'm going to have to ask witnesses questions of a graphic sexual nature? Does that make you uncomfortable? Does it make you view me differently?
- Does the emotional component of these charges give you feelings about sitting on this case?
NOTE: Jurors that have strong feelings against rape or sexual assault should not be excused for that reason. It is perfectly okay to have strong feelings against rape (or any crimes). The test is whether they can be fair and impartial in deciding whether the defendant committed the crime of which he is accused. [However, someone who has personal experience of a similar nature to the case (i.e. a survivor/victim) may be too emotional to handle hearing the case].
- Does anyone feel that the presumption of innocence or the burden of proof should be higher or lower because this is a case of sexual assault (or rape)?
- What does rape/sexual assault mean to you?
- If the Judge gives you a definition that is different from your definition, do you have any problem accepting that?
B. Consent is an Issue
- Is it ever okay to have sex with someone against his or her will?
- Assuming the answer to the previous question is no, follow up with scenarios that might pull some bad jurors out of the closet, using common myths….
- What if the woman was wearing a really short skirt and high heels?
- What if the woman went on a date with the man?
- What if the woman had sex with the man on a previous occasion?
- What if the woman was making out with the man for a long time beforehand?
- What if the woman was really drunk?
- What if the woman had a reputation for sleeping around?
- In the context of your own life experience, do you think that consent or agreement is something we should be free to do or not do, as we choose? Do you think we are also free or should be free to change our minds if we have agreed to something? Basically, it's up to us, isn't it?
- Do you understand that sexual assault can happen without the use of a weapon? Do you agree or disagree that that can happen? Why or why not?
Note: For most women the prospect of rape/sexual assault is absolutely terrifying. Many women will unconsciously impose fault on women who are victims of sexual assault, in an attempt to distance themselves from the possibility of becoming victims themselves. It is not uncommon for female jurors to say things like, "I could never be raped. The man would have to kill me before I let myself be raped," as an attempt to convince themselves that they would have some amount of control over the situation. Likewise, even if the victim did nothing wrong, some women will impose fault on her, to explain why she was raped, but they never would be. This is not to say that you should strike all the women in your panel. Rather, do not presume that women will be better jurors than men. Do what you can to flush out the feelings of blaming the victim.
C. Case Relies on Victim's Testimony:
- Where to you think most crimes of a sexual nature occur? In public or in private? Why do you think most of them occur in private?
- Do you understand that testimony is evidence, just as is any object (gun, photo, etc.)? If the testimonial evidence convinces you beyond a reasonable doubt of the defendant's guilt, could you convict on that alone? (NOTE: if juror answers no, should be removed for cause).
- Pick a juror and give them a scenario of him walking home from work one night, alone, and being held up/mugged. He gets a great look at the suspect, noticing many details about his appearance. The suspect flees with the juror's money. The juror finds a police officer and reports the crime. Instead of arresting the suspect, the officer asked the juror: "Where are all of your witnesses? Jurors never convict on the testimony of one person, so we can't arrest him."
- How would you feel? Do you think this is fair?
- If the case was prosecuted, and you testified, and the jury believed you, do you think they should convict?
D. Marital & Date Rape
This is a difficult and tricky area for prosecutors. Unfortunately, many potential jurors have difficulty with marital rape… too many of them do not see it as a crime. The best approach for this is to use hypothetical questions/scenarios, relating rape to other crimes so that the stigmas & myths are debunked. Some suggestions are:
- Suppose you have a friend that has borrowed money from you several times. You decide that you have had enough, and on a particular day when your friend comes to you, you say no. He then pulls out a knife or gun and threatens your life if you don't give him the money.
- Is that illegal? You've given him money before; didn't he have the right to expect it this time?
- Why would your analysis be any different if the object were sex instead of money? Is forced sex a crime or not?
- Suppose a man and woman are in a dating relationship. Before they ever met, he bought a beautifully maintained vintage sports car. During the relationship, he let his girlfriend drive the car on a couple of occasions, each time with his full knowledge and consent. After they broke up, she wanted to borrow the car. When she asked him, he told her unequivocally, "No way!" She then steals his keys and takes his car.
- Has she committed a crime?
- Why would the analysis be any different if he took her body without her permission? Do we place more value on his sports car than we do on her body and her free will?
- Does a woman ever lose the right to say no?
- Suppose a man shoots and kills his bride-to-be. Is it murder? If so, then if instead of killing her, he forced sex on her, is it rape?
- If a man shoots and kills his wife, is it murder? If so, then wouldn't forced sex between the same two people be rape?
- Can you all agree that regardless of your personal opinions about what the law is or ought to be, you will follow the law as the judge gives it to you? And, based on the law as the Judge gives it, if I prove all of the elements of the case to you beyond a reasonable doubt, will you convict?
- Note: Look at Voir Dire questions for DV cases… they may be appropriate for marital or date rape as well.
E. Delays in Reporting
- Can you think of any reasons why a victim of rape might not report the rape right away? Do you think she might be emotionally traumatized? Do you think she might be too distraught to talk about it?
- Ask jurors to think of their most embarrassing or humiliating moment. (Give them a minute or two to think). Now, ask:
- How long did it take you after that incident to be able to tell someone else about it without being totally humiliated?
- Can you understand why it might be difficult for a rape victim to tell anyone about her rape?
- Consistent with your life experience, if someone suffers a traumatic event such as a sexual assault, do you think a person would immediately discuss all of the details? What do you think a person's first concern would be if something traumatic or terrifying happened to him or her?
- Have you ever felt like you just wanted to be left alone? Can this sometimes be a response to a serious problem?
- We anticipate that the victim will testify and will tell us that she was not immediately able to report the sexual assault. Does the potential fact of the delay cause you any concern at this point? Would you be committed to hearing the victim's reasons before you assess her credibility?
F. "Unsympathetic" Victim/Other Victim Issues
- Does anyone know why the press does not release the names of rape victims? (Answers should relate to embarrassment of the charges)
- Select a juror and ask him or her to think about their last sexual experience. Then, ask if they would like to get up and tell everyone in the courtroom all the details about it. Before they can start to do that, ask:
- It would be horribly embarrassing to have to tell anyone about it, wouldn't it? How about telling a room full of strangers?
- You can also go through a "brainstorming" about the number of people a rape victim must tell about her rape....law enforcement officers, detectives, medical staff, advocates, prosecutor, defense attorney, courtroom judge, jurors, family, friends, employer? Makes it much more understandable why victim may be "shut down" emotionally when she testifies.
- Is there anyone who does not like to do public speaking? Why not? (Focus on nervousness aspect.) Can you understand why a person who is not used to being in a courtroom might get nervous talking in front of you all in a courtroom? Do you think it might be even harder when talking about a non-consensual sexual act?
- Do you think that a criminal should get a "free ride" if he happens to pick an unsympathetic victim?
- Does anyone think that someone who has been convicted of a crime cannot be a victim of a crime?
- If several different people at different times asked a person to describe a traumatic event, would you think the questions would all be the same or would they be different? Would a nurse's questions be different than a police officer's? If the questions are different, then do you think the information provided could vary?
- Drawing on your life experience, if something traumatic or frightening happened to you, do you know, as we speak now, whether you would be able to focus on specific details?
G. Sympathetic Defendant
- What does a rapist look like?
- Can you tell a rapist just by looking at him?
- Would you agree that some people who look unpleasant are actually really nice? And, some people who look really nice are actually quite different when you get to know them?
- Suppose at the end of the case, I have not convinced you of the defendant's guilt, but you look over at him and decide he looks like a rapist. Will you vote to convict him based on his looks? (Answer should be NO).
- So, if the opposite is true, you are convinced of his guilt, but he doesn't look like a rapist…. Would you agree you must vote guilty?
- If another juror said during deliberations that the defendant couldn't have done it because he looks like such a nice guy, what will you say to him?
H. Intoxicated (or Drugged) Victim
- Pick a juror and give them the following scenario:
- You stay at work late and by the time you leave it is dark and you are really tired and hungry. You can go home one of two ways. The quicker route will take you 15 minutes, but will take you through a part of town that is not considered very safe after dark. Or, you can go the long way, which might take as much as an hour. You decide to take the shorter route. When you are stopped at a red light, you are car jacked at gunpoint. When you call the police to report it, they are not the slightest bit sympathetic, taking the attitude that it serves you right for making such a poor choice in taking the shortcut.
How would you feel? Is this fair? If the police catch the thief, should he be prosecuted, or does your poor choice negate his criminal activity?
- Pick another juror (male) and give the following scenario:
- You go to a bachelor party. You are there with a lot of your friends, as well as some friends of friends that you don't know. You have a lot to drink, and overall have a really good time. At some point, you pass out (or fall asleep… a very deep sleep). If some man at the party that you had talked to, drank with, and watched "movies" with decides he would like to have sex with you.
Does he have the right to do so? By drinking so much, have you consented to the sex? (Note: if this is too racy for you or your court, give the scenario with the man taking the juror's wallet instead).
- Does anyone feel that a woman who drinks to excess and passes out is "fair game" for anyone who wants to have sex with her?
- What do you think about a man who has sex with a woman who is passed out/unconscious/asleep? Is that normal/healthy/appropriate behavior?
- What do you think of when you hear the term "drug-facilitated rape"?
- Has anyone had any experience or training on the topic of drug-facilitated sexual assault? Anyone familiar with the drugs Rohypnol or GHB?
- Do you think that it refers only to drugs that are surreptitiously slipped into someone's drink, or can it refer to drugs that are voluntarily ingested?
- Does anyone have difficulty with the concept that a person could be raped and not remember it? How do you think that experience might differ for a victim from a rape that she remembers? Do you think it might be more difficult to not know exactly what happened to you? To not know how many people assaulted you? To not know if the assault was videotaped or photographed?
The above questions were developed using the trial experience and resources of several prosecutors and former prosecutors, including: Tracy Bahm, Senior Attorney for APRI; Roberta Baldini, Attorney for the National Judicial Education Program; Patricia Powers, Yakima County, Washington, Deputy Prosecutor; and the Office of the District Attorney of Queens County Prosecutor's Manual for Sex Crimes, Richard A Brown, District Attorney.
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