How to Improve Voir Dire – The Sound of Silence

Updated: Apr 23, 2020


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The famous scene from Ferris Beuller’s Day Off (Hughes & Jacobson, 1986) quoted above is an exaggerated example of one of the common mistakes attorneys commit during voir dire – they don’t pause long enough after each question before moving to the next question. Whether in Ferris Beuller's classroom, or during voir dire in the courtroom, the result is the same: chirping crickets. For attorneys the result is much more than just bored students, it means valuable information about the variables that will drive the ultimate verdict the attitudes, beliefs, feelings, and experiences of the potential jurors are never uncovered. In turn, attorneys miss out on potential challenges for cause, and fail to identify for peremptory strikes the most dangerous jurors on the panel. In other words, not pausing long enough can mean leaving the wrong people on the jury and ultimately an adverse verdict.


So, how long should you pause after asking a question? There isn't a one size fits all answer, but research from the field of education on student response time in the classroom provides valuable insight.

On average, school teachers only wait between .7 and 1.4 seconds (Stahl, 1994) after asking a question before continuing to talk or permitting a student to respond. But it turns out that students need at least 3 seconds and sometimes up to 10 seconds (depending on the complexity of the questions) of "think time" before they feel comfortable responding. Researchers (Rowe 1972; Stahl 1990; Tobin 1987) found that allowing just 3 seconds of silence after asking a question resulted in many positive changes in student behavior:

  1. There was an increase in the length of the responses.

  2. There was a decrease in the number of "I don't know" answers.

  3. The number of unsolicited appropriate responses increased.

  4. Student confidence increased.

  5. The incidence of speculative responses increased.

  6. The frequency of student questions increased.

  7. The incidence of responses from “relatively slow” students increased and,

  8. The number of teacher questions which did not elicit a response decreased.

How Does this Apply to Jurors?


Potential jurors are no different than students in the classroom in that they are being asked questions (sometimes complex questions) and they need time to think and formulate their answers. However, unlike students, potential jurors are dealing with a host of additional variables that decrease the likelihood of them speaking up. For example:

  1. They are in an unfamiliar and very formal setting.

  2. They don't want to be there.

  3. They are unsure of the "rules" of the game.

  4. They are being asked to speak in public and in front of strangers.

  5. They feel like they are being scrutinized by people in positions of power or prestige.

  6. The questions are personal.

  7. The questions might elicit unpopular opinions.

  8. The questions can be confusing.

  9. The questions ask for admissions of bias or the inability to be fair.

Additionally, each time a question is posed in open court, potential jurors go through the following thought process, which makes them even more reluctant to speak up:

  1. Do I understand the question?

  2. Do I have an answer to the question?

  3. Do I feel like raising my hand?

  4. Is my answer stupid?

  5. Am I really allowed to speak my mind?

  6. Is my answer going to be criticized by my fellow jurors?

  7. Will I be criticized by the attorney or the Judge?

  8. Will my answer get me into trouble somehow?

What can be Done?


Given what is known about students in the classroom and jurors in the courtroom, one important key to increasing the quality and quantity of juror responses during voir dire is to embrace the silence. Once a question is posed to prospective jurors, attorneys need to become comfortable allowing at least 3 seconds and perhaps up to 10 seconds for juror "think time." Silence is uncomfortable, and takes practice to master, but it has the potential to pay huge dividends when implemented correctly.


Conclusion


It's important to note that simply waiting 3 or more seconds is not a magic bullet. If an adequate pause doesn't promote more juror engagement, something else is going on. Researchers (Stahl, 1994) have found that to be true in the classroom: "To be most effective, this period of silence should follow a clear, well-structured question with the cues students need to construct adequate answers. Conversely, extended periods of silence following imprecise questions tend to increase the confusion, heighten the frustration, and lead to no response at all." The same applies to attorneys in the courtroom – questions need to be clear. Additionally, if jurors aren't talking despite adequate "think time," it could be that there are problems with the questioning style, i.e., the questions feel like an interrogation (cross examination); they might sound condescending; they might seem argumentative; or they might be phrased in a way that a juror would feel like a fool raising his or her hand. So, if you've given jurors time to think but they still aren't talking, don't assume they have no opinions; rather, assume there's something wrong with the question.


References


Hughes, John. (Director), Hughes, John & Jacobson, Tom (Producers). (1986). Ferris Beuller’s Day Off [Film]. United States: Paramount Studios.


Rowe, M. B., (April, 1972) Wait-Time and Rewards as Instructional Variables: Their Influence on Language, Logic, and Fate Control . Resources in Education, Education Resources Information Center, Presented at the National Association for Research in Science Teaching, Chicago, Illinois, April 1972.

Stahl, R. J. (1994) Using "Think-Time” and “Wait-Time” Skillfully in the Classroom. ERIC Digest.


Tobin, Kenneth. (Spring 1987) The Role of Wait Time in Higher Cognitive Level Learning. Review of Educational Research 57: 69-95. EJ 371 356.


For more information on how to improve jury selection, check out this post:


For helpful witness preparation advice, check out these posts:


Jeff Dougherty, M.S.

President - Litigation IQ

713 392 8135

Jeff@LitigationIQ.com

www.LitigationIQ.com

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