By Stephen Hayne
Steve has practiced criminal law for 20 years, trying 100’s of cases from Capital murder to speeding in 25 counties throughout the State. He is currently a partner in the firm on Cowan, Hayne, and Fox, which emphasizes DWI defense. Steve is co-author of Defending DWI’s in Washington (Butterworth Legal Publishers), and has served as past Chair of the Criminal Law Sections of the WSBA, WSTLA, SKCBA and EKCBA. He is a Founding member and patron of WACDL and has served as its Vice President twice. In 1992, under suspicious circumstances, Steve was voted one of the Washington’s top 10 trial lawyers in a poll of 100 Superior and District Court Judges.
Don’t get me wrong, I love trial work. As long as we have jury trials, I will serve out my career and wander off with a head full of happy memories.
But…I have a confession to make. I hate voir dire. Despite 20 years of trying to like it, I hate it. Oh, I’ve read all those manuals and treatises (often written by people who couldn’t possibly have picked any juries), been to seminars, watched and tried to imitate the great ones (with disastrous results), have written articles and given numerous speeches to other lawyers on how to do it. I still hate it.
Over two decades, I’ve spent thousands of hair-pulling hours thinking about it and hundreds more miserable hours actually doing it. Despite my history, I cling to a dream: the perfect voir dire. In this dream, skeptical jurors become trusted friends, the prosecutor glares with envy, the client beams with smug confidence, and the silken-robed father/mother figure lurking above actually smiles at my amazing display of talent and skill.
In this dream, I am completely comfortable, prepared and confident; no longer consumed with anxiety over unfinished tasks, unserved subpoenas, unfiled motions. As the jurors file in, they are an obviously warm and gregarious lot; in touch with their feelings, ready and willing to become intimate. In this dream, I have even managed to gain access to the top-secret, jealously guarded Judge’s Arbitrary Secret Rules of Jury Selection (which of course change from day-to-day and judge-to-judge on a random and unpredictable basis).
I have my list of “never-do’s” memorized, and not once do I ask repetitious, boring, offensive, irrelevant, political, religious, legal, gratuitous, stupid or other “obviously” objectionable questions. Instead, each juror and I have a friendly dialogue in response to my open-ended, conversational, relevant, probing, intelligent, informative, empathetic, educational and theme-oriented inquiries.
I use each answer as an opportunity to explore the juror’s innermost self, to create an empathetic bond, to inform and educate on the theme of my case, to root out subtle bias, and to gain each juror’s trust and confidence. With surgical precision, I skillfully expose the enemies of justice and use my peremptories boldly and without second thoughts. I resume my seat in triumph; confident that justice will be done by my new-found friends.
But alas, as I begin again the real process, in a real courtroom, with a real judge and jury, the dream more closely resembles a nightmare. This time when the jurors file in, they return my welcoming smile with stone-faced glares. Several offer subtle waves or discreet winks in my opponent’s direction. The rest frown openly at my client, confident payment will soon come due for whatever transgressions have brought him to justice.
As prospective jurors are called to the box, I suddenly realize I have misplaced my carefully prepared “juror profile”, setting off a frantic search through the Juror Information Forms. In panic, I notice my notes on several of the forms, in direct violation of the dire warning “ATTORNEYS – DO NOT WRITE ON THESE FORMS!!”. My mind gropes for a believable alibi, missing several juror numbers as they take their seats.
The judge begins with “general questions” and the courtroom becomes a kind of TV auction: “number 36 gets one, number 28 gets one, number 114, number 94, number…”. As I madly scribble numbers, I have already forgotten the question. I search my memory and the judge rushes on, numbers zipping by too fast to register. With the last general question, I breathe a sigh of relief – then panic anew at the sight of my notes; a collage of meaningless drivel surrounded by dozens of mysterious numbers. Oh well, maybe I can sort it out as we go along.
Completing her questioning, my opponent exchanges one last conspiratorial smile with her comrades in the box and resumes her seat. With a hopeful smile, I rise to the challenge, determined to win over this hostile mob.
“Good morning ladies and gentlemen, my name is Steve Hayne and I…”
“Sustained. Ask a question.”
“Er…, Mr. Johnson, I wonder how you feel about being called upon to sit in judgment of my client?” (I ask open-endedly).
“Not much”, he answers with a frown.
“Well, I wonder if you’d share with us your reaction to receiving your jury summons?”
“Well, I understand how this seems sort of an invasion of privacy to have to answer these questions and all, but I wonder if you have had any experiences which came to mind when the judge explained what type of case this is?”
Undaunted, I slop on, hopeful that the smiling juror in seat number five sympathizes with those unjustly accused.
“Good morning Ms. Baker. By the way, do you prefer Ms., Mrs. or Miss?”
“Well then Ms. Baker, I believe you indicated to the judge earlier that you have been the victim of a crime?”
“Oh, yes. Well, could you tell us something about your experience, I mean, has there been anything about this process that you, er, that you’ve found particularly interesting or surprising, or have found surprising or interesting, er, your experience I mean. As a juror that is. Heh, Heh. Know what I mean? (I resist mopping my brow).
As the judge fidgets impatiently, I glance at the clock, hopeful of an approaching recess. Alas, I am left to continue pulling teeth, extracting one-word answers form each juror in turn. In frustration, I finally attempt to fill the vacuum by lecturing the jurors, drawing a chorus of objections from Court and counsel. In the end, I get a few half-hearted assurances to be “fair”, and earmark the worst for a quick, peremptory return to the jury pool.
With great satisfaction, I use the power of the peremptory to yank the trap door on those most like my mother-in-law or high school shop teacher – only to have them replaced by my opponent’s college roommate or current finance. With a wink and a promise to put aside their grossly obvious biases against my client and be “fair”, the judge denies my challenges for cause. Both sides out of ammo, the jury is finally seated.
At last, we can get on with the real business at hand: the trial. I feel a curious sense of contentment. But why shouldn’t I? After all, didn’t everyone promise to be “fair?”