These stereotypes work much of the time. However, in some cases they don't. The recent William Kennedy Smith date rape case provides an excellent example. The jurors were all older, educated, religious, conservative and traditional. Normally, this type of jury is a prosecutor's dream, and the prosecutor, Moria Lasch, most likely was very pleased with the types of people eventually seated as jurors.

In a date rape case, however unfortunate, the victim is also on trial. The woman's sex life, the way she dresses and even her underwear is brought in as evidence. In the Smith case, the alleged victim, Patricia Bowman, went to a singles bar alone, went to the home of a man she had just met late at night, made out with him on their first date, and then accused him of raping her.

In this case, it would have been difficult to get an acquittal with the stereotypical criminal defense jury. This is because liberals would be angry about the defense tactic of putting the rape victim on trial, and minorities would not be able to identify with Smith because of the tremendous social distance between them.

The defense team did their homework. They analyzed their case, hired a jury consultant who did surveys and focus groups, and learned that, in this type of case, the normal stereotypes are reversed. From its analysis, the defense learned that traditional prosecution-oriented jurors tended to view the woman's behavior as promiscuous and had a difficult time envisioning a white professional -- Kennedy or not -- as a criminal type.

The prosecutor obviously did not think her case through. Unlike the defense, she did no voir dire preparation. Rather, she relied on the typical prosecutor's jury profile, thereby giving Smith twice the number of challenges he normally would have received.

Entering the Lists
The first step in voir dire analysis is to make a list with three columns. In the first column, the attorney should summarize major issues in the case, case theme or theory, case strengths and weaknesses, themes to be stressed in the closing argument, profile of the client, profile of the opposing party or victim, and a description of the key witnesses and their testimony.

In the second column, the attorney should describe the types of jurors who would be most favorable to his side of the case with respect to each component of the case outlined in the first column. The types of jurors who would be unfavorable are then listed in the third column.

In considering types of people who will be favorable or unfavorable to the case, an attorney should analyze demographics, personality types, attitudes, values and life experiences. In terms of demographics, look at age, ethnic background, occupation, social class, life-style and politics. Pesonality types that should be considered include whether a prospective juror is authoritarian, conformist or non-conformist, liberal or conservative, detail oriented, loose or rigid, giving or ungiving, warm of cold.

In addition, attorneys need to identify two critical predispositions in each prospective juror that can significantly distort and affect a juror's judgment in a particular case. These predispositions come in two categories: generic and idiosyncratic.

A generic predisposition is a generalization of feelings or attitudes toward a whole class of people. For example, in a personal injury case, prejudice against plaintiffs or personal injury attorneys is a generic predisposition that must be identified. In a criminal case, lawyers must identify which of the jurors are deferential to authority, since these people almost always side with the prosecutor.

An idiosyncratic or individualized predisposition is a specific reaction triggered by some unique quality of the case. In the Smith case, for example, the idiosyncratic belief involved attitudes towards sexual permissiveness.

The Questioning Process

Once the analysis is complete, attorneys must design the questions to be asked of the prospective jurors during voir dire. All too often during jury selection, the questions asked are boring, repetitive, serve no purpose and reveal nothing about a juror's biases or how he will feel about issues in the case. The limitations that have been placed on attorney-conducted voir dire during the last few years are, unfortunately, well deserved, because attorneys consistently have abused voir dire by wasting too much time.

Most cases can be reduced to four or five essential questions that will elicit information from prospective jurors about how they think and feel about issues pertinent to the particular case and whether they would be prejudiced in one way or another. For example, in the Smith case, only a few general questions were necessary:

* What do you think about the Kennedys?

* Do you approve of women who go to singles bars alone? Do you think it is acceptable behavior?

* What about women who go home with a man they just met? Do you approve or disapprove? Why?

These questions don't come out of thin air; they are the result of a methodical, thorough case analysis. Selection of these few key questions can best reveal how individual prospective jurors feel about the philosophical issues that will affect their deliberations in the specific case at hand.

Into Focus
If a case involves inflammatory or divisive issues, has engendered media publicity, or involves a well-known client, a community attitude survey may be useful to measure community sentiment and how various segments of the community will view the case. They also provide an opportunity to test several themes and theories, so attorneys can get a preview of community reaction to alternative strategies. The pretrial juror questionnaire is an effective, time-saving tool to gather needed information, as a detailed, accurate portrait of each prospective juror emerges from how they answer written questions.

Pretrial juror questionnaires produce significantly more honest responses than can be obtained from oral voir dire alone. Peer pressure, the perception of the judge as an authority figure, and the instinctive need to be accepted make prospective jurors less candid when sharing their personal views in open court than when answering questions privately. Such privacy is essential in probing sensitive or controversial issues such as any personal or family history with alcohol or drug abuse, and attitudes toward sexuality.

The more difficult, and important, the case, the more sophisticated techniques that can be used. Focus groups are a means to "test-drive" case strategy and preparation, and provide an analysis of how different types of jurors react to the specific facts of an individual case. For jury selection purposes, analysis of focus group data also provides a list of favorable and unfavorable juror traits so intelligent use can be made of peremptory challenges.

Focus groups are similar to the market research studies manufacturers and advertisers use to measure consumer reaction before marketing their products. A group consists of 12 to 14 people who are chosen to approximate a typical jury in a particular trial venue. Panel members complete a questionnaire on their demographics as well as their values and attitudes relating to case issues and problems. Both sides of the case are argued to the panel; attorneys observe the panel's deliberations, and then question the panel members extensively as to why they voted as they did, and what could have changed their votes.

The challenge of voir dire is getting to know each juror as intimately and thoroughly as possible in a very short time.

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