Chapter 15: Ch05 Jury Tria

Voir dire is jury de-selection: counsel uses limited time and information to identify and remove jurors whose values do not align with the case theory, then frames jury instructions and deliberation to channel the chosen panel toward the verdict the evidence supports.

Chapter 5

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Selecting the Jury

A. Scope

1.01 Jury Selection

Voir dire, another name for jury selection, means to “speak the truth,” and the primary purpose of jury selection is to identify and select jurors who can fairly listen to the evidence and reach a just verdict. Additional goals are to discern the beliefs, views, and values of jurors and to educate them about the case.

Jury selection could more correctly be called jury de-selection, because it is actually an attempt by the lawyers to remove jurors who seem unfavorable to their side. Deciding who to remove is difficult because of the limited time and information available. Federal Rules of Civil and Criminal Procedure and similar state rules give judges discretion in conducting jury selection. See, e.g., [FRCP 47(a)](https://www.westlaw.com/Document/NBEB33D10B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBEB33D10B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and [FRCrimP 24(a)](https://www.westlaw.com/Document/N5229F630B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5229F630B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

LLM‑backed tools can draft tailored voir dire questions aligned to case themes and likely biases, and they can also suggest follow‑ups keyed to juror answers to build strikes for cause.

1.01.1 Role of the Attorneys

The role of attorneys varies among jurisdictions. In all courts, lawyers may bring motions to strike jurors for cause and may exercise peremptory challenges to remove jurors. In some jurisdictions the attorney can only submit written questions that the judge asks the jury; in others, the attorney may ask extensive questions. In federal courts, the judges commonly ask the questions; in state courts, the lawyers typically do. Counsel is able in all cases to suggest questions judges may ask.

1.01.2 Client Participation

When deciding how much input a client should have in jury selection, an advocate should consider the preferences of the client, the ability of the client to make informed decisions about jury selection, the underlying jury selection theory or theories, the relationship with the client, the impression made on the jurors when a “team” attorney and client effort is demonstrated, and the ramifications of disagreements with the client about particular jurors.

1.01.3 Role of the Judge

The role of the judge varies significantly depending on the jurisdiction and the judge. In courts where the judge asks all the questions, the judge may use questions they typically ask or use questions submitted by the lawyers. In jurisdictions where the attorneys ask the questions, the judge may also participate by asking some questions. Counsel may request that the judge inquire into sensitive and private matters in an effort to obtain more accurate information and to keep from antagonizing members of the panel.

1.01.4 Familiarity with Procedures

An attorney should always be familiar with a judge’s approach by either watching the judge in other cases or asking colleagues or clerks. Specific procedures for jury selection should be discussed with the judge and opposing counsel. If they opt for the “usual way,” do not presume to know what that is; it is necessary to ask.

B. Jury Selection Pretrial Procedures

1.02 Sources

Jury selection procedures are controlled by statutes, rules of procedure, local court practice, and the preferences of individual judges. This section briefly summarizes these procedures.

1.02.1 Jury Pool

Jurors are obtained from the community where the case is heard. The community is usually the same as the district in which the court sits. The names of jurors generally come from public records (voter registration cards, driver licenses, utility records, property documents). The jury pool cannot constitutionally exclude any class of people.

1.02.2 Juror Summons

The clerk of court or court administrator summons individuals selected to serve as jurors by letter or other correspondence. A statute or court rule will list the few legitimate excuses for not appearing. Jurors complete their jury service after the set period (usually a few weeks or months) has elapsed or after they reach a verdict in a case.

1.02.3 Jury Orientation

The clerk conducts an orientation program, which may include a lecture, pamphlets, or a film or video describing the roles of jurors. After orientation, prospective jurors may leave and be contacted when needed or remain at the courthouse in a jury waiting room.

1.02.4 Preliminary Information About the Panel

Jurors typically complete an online or paper questionnaire about themselves. On this form, the jurors may provide information about family, occupation, education, hobbies, and other relevant data. A juror may be excused by the court based on this information. If additional background information is needed, questions can be asked by the judge or attorneys.

GenAI can generate concise questionnaires that elicit bias without inviting pretext challenges, and they can propose scoring rubrics and strike matrices that weight answers consistently.

1.02.5 Jury Panel

The clerk selects a panel of prospective jurors from the jury pool. A bailiff or other court official escorts the panel to the courtroom where the case is to be tried.

1.02.6 Number of Prospective Jurors

The number of prospective jurors in a panel usually includes the number of jurors who will deliberate, plus one or more alternates, plus the number of individuals equal to peremptory challenges the attorneys may exercise, plus additional individuals to replace any juror who may be removed for cause. For example, for a civil jury of six, the initial panel may include fourteen or more prospective jurors.

C. CourtRoom Procedures

1.03 Seating Prospective Jurors in the Courtroom

Typically, the court clerk randomly selects prospective jurors from the group in the courtroom by drawing names and having them take a seat in the jury box.

1.03.1 Oath or Affirmation

The oath or affirmation is usually given by the clerk, and the jurors promise to answer all questions truthfully and completely.

1.03.2 Preliminary Remarks

The judge ordinarily makes introductory remarks to the prospective jurors. The comments usually cover information needed by them to understand what is happening and an explanation of the case. The judge also typically asks informational questions of the prospective jurors related to the case.

1.03.3 Presence of Judge and Reporter

The judge and reporter are usually present throughout all jury selection procedures. Some jurisdictions do not require a judge or reporter to be present during questioning by the attorneys. An attorney should insist on the judge being present and request a reporter if necessary to control the room or record all questions and responses.

1.03.4 Attorney Presence

Attorneys are commonly permitted to sit or stand or may move in the courtroom during jury selection. Counsel must be certain that they can be heard and that any movement is not intrusive or distracting.

1.03.5 Order of Questioning

The order of questioning by counsel is usually established by rule. Often, the party who has the primary burden of proof goes first. It’s important to know whether the plaintiff/prosecutor or defense attorney questions first so questions can be appropriately planned.

1.03.6 Discussion of Law

Generally, a detailed discussion of the law by the attorneys is not permitted as the judge explains the law. Counsel may summarize important legal issues and direct appropriate questions about their application to the prospective jurors.

1.03.7 Amount of Time Available

Judges reasonably restrict the amount of time for jury selection depending on the complexity and length of the trial.

1.03.8 Open Courtroom

The press and the public are rarely excluded during jury selection as the process is open to all, although it is uncommon that anyone attends unless it’s a high profile case.

1.03.9 Jury Selection Materials

Attorneys should provide questions for the judge to ask and prepare their own questions where permitted, along with a summary of the case theories and a list of witnesses and exhibits.

1.03.10 Recording Information

Comments concerning juror responses should be privately recorded by counsel in an organized manner. Notes should not become distracting, delay questioning, limit effective communication, or make jurors uneasy. Notes can be taken by hand or on a computer. Co-counsel or a paralegal can help record the responses to questions.

D. Questioning the Jury Panel

1.04 Sources of Authority

[FRCP 47](https://www.westlaw.com/Document/NBEB33D10B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NBEB33D10B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (a) and [FRCrimP 24(a)](https://www.westlaw.com/Document/N5229F630B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5229F630B8B611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) prescribe jury questioning in federal courts and similar rules apply in state courts. Statutes, case law, and local protocols may also govern the scope and range of appropriate questions.

1.04.1 Questioning Exclusively by the Judge

Judges ask all jury selection questions in about one-fifth of the state courts and approximately two-thirds of the federal courts. Efficiency is optimized by the judge asking all of the questions, but the disadvantage is that the judge does not know the case as well as the attorneys. The attorneys can submit questions they want asked, which the judge has the discretion to accept or ignore. After the judge is finished questioning, the lawyers may be able to submit clarifying or additional questions to be asked by the judge.

1.04.2 Questioning by Judge and Attorneys

In most state courts and in some federal districts, the judge and attorneys share the questioning. The lawyers may be able to obtain relevant information as well as develop a rapport with the jurors.

1.04.3 Questions Directed to the Panel

Ordinarily, jurors are questioned as a panel, with general questions typically seeking “yes” or “no” responses directed to all of the prospective jurors in the presence of each other.

1.04.4 Questions Directed to Individual Jurors

Jurors may be individually asked questions, which require responses beyond a yes or no to clarify or to expand their previous response.

1.04.5 Questions Directed to Individual Jurors Outside the Presence of the Panel

Jurors may be questioned individually outside the presence of other panel members in major criminal cases and significant civil cases with very sensitive issues. Sometimes prospective jurors are questioned in isolation so that possible jurors may be more likely to reveal personal or embarrassing information or to avoid a juror’s answers from influencing other jurors.

1.04.6 Introductory Remarks by Attorneys

In jurisdictions where the attorneys question the panel, the lawyers are usually allowed to make brief introductory remarks about the process or case.

1.04.7 Types of Questions

Attorneys can ask questions that are open-ended, close-ended, general to the panel, specific to the panel, general to some individuals, or specific to an individual.

1.04.8 Selecting Effective Questions

The type and frequency of the most effective questions depends on the applicable jury selection process, the approach of the judge, the preference of the lawyers, the responses of the jurors, the nature of the case, the time available for questions, and the purpose for asking the questions.

LLMs can be used to draft voir dire questions. For example, GenAI can map each question type to a concrete goal—bias discovery, rapport building, or element testing—and suggest targeted phrasing with follow-ups. This AI tool can also draft questions with branching logic that can accommodate and follow up with each juror’s prior answers.

1.04.9 Concluding Questions

The concluding questions should elicit positive and affirmative responses that support a verdict for the client.

E. Theories of Jury Selection

1.05 Multiple Approaches

Lawyers rely on various ways to de-select jurors. The ultimate goal is to predict how a prospective juror will vote on the final verdict. Counsel may employ assorted methods to determine who might make a favorable juror—that is, one who will provide their client with a beneficial outcome. This section describes common methods that are used.

1.05.1 Prevailing Standards

Jurors will decide a case based on the facts and law similar to how they make other important decisions in life. They will be guided by their values, beliefs, principles, norms, experiences about life experiences and standards. This is critical information counsel attempts to discover through voir dire questioning and then applies to the de-selection process.

1.05.2 Facts and Data

Factual information obtained by counsel from juror questionnaires and their responses to questions during jury selection form a database to help discern favorable jurors from unfavorable jurors. Objective and reliable information can help in foretelling how prospective jurors may vote.

GenAI can ingest juror responses, normalize the data, and produce scored profiles that tie each factor to a strike rationale. LLMs can also detect patterns and outliers across the panel, simulate peremptory and cause-challenge scenarios, and draft targeted follow-ups that test each juror’s promise and risk.

1.05.3 Impressions and Intuition

This generic approach relies on the intuition of the attorney or client to decide which jurors will be most appropriate to serve. It may be based upon the experience of a trial lawyer. Or it may be as simple as first impressions and perceptions.

1.05.4 Generalizations and Stereotypes

Some attorneys select jurors based on generalizations regarding types of people. This theory can be detrimental or helpful depending on the validity of the stereotype and its application to an individual juror. Some factors are inappropriate or disallowed. See § 1.05.9.

1.05.5 Character and Personality Traits

Some lawyers identify favorable jurors based on traits including: how they listen to questions, how well they respond and communicate, how open-minded they may be, how honest and transparent they appear, and case relevant attitudes and behavior.

1.05.6 Nonverbal Behavior

Positive or negative body language exhibited by the jurors may influence an attorney’s choices. Care must be taken not to misinterpret or put too much emphasis on ambiguous body language.

1.05.7 Jury Profile

Jury profiles describe the ideal juror and the unfavorable juror. Some attorneys try to match prospective jurors to these profiles. Other lawyers find this approach speculative and too difficult to apply.

1.05.8 Social Science Data

This theory identifies demographic characteristics that favorably correlate with a case theory. This approach relies on the expertise of social scientists. Not many cases justify this expense, and many attorneys are reluctant to rely extensively upon the judgment of nonlawyers in selecting jurors.

To avoid the cost of consultants, LLMs can help test whether proposed demographic proxies actually correlate with case-relevant attitudes, and can flag impermissible stereotypes. GenAI can also seek to target value- and experience-based indicators, drafting voir dire that elicits those traits without touching protected classes. Of course, all of the above should adhere to the law and ethics rules.

1.05.9 Improper Bases

Jurors may not be excluded in either civil or criminal cases because of their race, gender, and other protected constitutional classifications. The parties have a right to have these individuals as jurors, and the prospective jurors have a right to be jurors.

F. Objectives of Jury Selection

Primary Objectives

There are six objectives trial lawyers may try to achieve during the jury selection process:

  • Discover information to support challenges for cause.
  • Obtain sufficient information to exercise peremptory challenges.
  • Educate the jury about the case, facts, clients, parties, witnesses, and law.
  • Develop a rapport with the jurors.
  • Neutralize negative and enhance positive juror attitudes, opinions, and beliefs.
  • Secure commitments from the jurors.
1.06.1 To Support a Challenge for Cause Motion

A juror’s bias or prejudice determines whether grounds exist that would disqualify the juror and support a motion to challenge for cause. Areas of questioning include prior knowledge of the case, relationships or familiarity with the parties or attorneys, existing attitudes regarding issues in the case, and related areas. The attitudes of the jurors about the parties, witnesses, theories, weaknesses, and strengths may be explored to uncover any prejudice against a party or bias in favor of a party.

GenAI can tie specific statements to recognized grounds for cause, proposing follow-ups that secure clearer bias. LLM-backed tools can draft the challenge for cause, preserving juror language, and rehabilitation-resistant sequences.

1.06.2 To Exercise a Peremptory Challenge

These questions seek to determine a juror’s opinions, feelings, and attitudes that may cause a juror to favor or disfavor one side. Examples of areas to be explored include: their background, family status, work experiences, how they spend their weekends, hobbies, literature they read, their social media networks, how they obtain news, programs and movies they watch, and other life experience information.

1.06.3 To Educate the Jury

Attorneys can educate prospective jurors about relevant facets of the case. Questions may be asked in a way that also explain the theories of the case. Queries may be designed to anticipate and counter efforts by opposing counsel to inform the jury about case weaknesses. There are limits to these types of questions as they may appear not to seek information relevant to exercising a cause motion or a peremptory strike.

1.06.4 To Develop Rapport with the Jurors

An attorney who engages the jurors with conversational questions increases the likelihood that the jurors will perceive counsel to be caring, sincere, and honest and may look favorably on that attorney’s case. These impressions can be lasting and influence the jurors during deliberations.

1.06.5 To Neutralize Negative and Enhance Positive Jurors’ Attitudes, Opinions, and Beliefs

Questions also may overcome negative opinions and build positive feelings. Negative and potentially harmful information may be revealed during jury selection. The harmful effects may be neutralized by honest reactions and by positive explanatory questions regarding the evidence that counter the negative perspectives.

1.06.6 To Secure Commitments

Lawyers may ask the jurors to commit to issues such as: being fair and impartial, remaining open minded, or following the law as explained by the judge. Counsel may also attempt to obtain a promise from the jurors not to hold some fact or weakness against a client or a witness. Such a request can be phrased as a question seeking a “yes” or “no” response. Judges may prohibit or limit the use of queries that are not able to be succinctly answered.

G. Approaches

to Achieve Objectives

1.07 Effective Approaches

Judges exercise discretion when overseeing the scope of questions, and many jurisdictions limit jury selection questions to areas that explicitly establish bias or prejudice. Effective queries should follow common-sense communication guidelines. Attorneys should engage the jurors in conversation, be receptive to responses, encourage jurors to give complete and honest answers, listen carefully, acknowledge responsive answers, and observe nonverbal demeanor. Lawyers should collect and review as much information as possible about the prospective jurors in order to make the best possible decision concerning the removal of a juror for cause or through the use of a peremptory challenge.

Observing Prospective Jurors

Observations of each juror should begin as soon as the jurors enter the courtroom and continue throughout voir dire, as described below:

  • A lot may be learned from the jurors’ entry, conduct, and physical condition.
  • Attention should be paid to friendly and unfriendly relationships among jurors. This factor may affect jury cohesiveness and may predict who may be leaders or influence others.
  • Observations about body language, a juror’s reluctance to make eye contact, alertness and ability to listen, and other physical or verbal cues may help form an impression about a juror.
  • The client, team members, or an expert in jury communications can record information and assess the jurors’ behaviors and responses.
1.07.2 Juror Questionnaires and Investigation

The questionnaires the jurors complete and, if names and addresses of the potential jurors are available before trial, appropriate and legitimate investigations may provide additional information about each juror.

1.07.3 Information About Jury Duty

Attorneys need to review the jury orientation program to discover the information prospective jurors receive before they appear in the courtroom. This information may have an impact on the their views of jury duty and the trial system.

Obtaining Relevant Information

Prospective jurors are the primary sources of information counsel rely on to make informed decisions about their capabilities of serving as a juror in the instant case. The type of information sought may determine how best to inquire about it, as explained below:

  • Questions about their (a) relationships with parties, lawyers, and witnesses, (b) prior jury experience, and (c) knowledge of any pretrial publicity are often initially asked by the judge and supplemented by queries from counsel.
  • Specific information about family, work, and life experiences may be sought through appropriate questions to the panel or specific questions to a juror based on their completed juror questionnaire.
  • Narrative and leading questions can seek additional information regarding their opinions or attitudes about relevant claims, defenses, and issues.
  • It can be uncomfortable for jurors to provide information considered to be confidential or sensitive. The judge may be agreeable to seek these responses, or counsel can explain to the panel their need to inquiry into these private and delicate areas.
  • Asking questions to demonstrate a possible prejudice or bias should be done carefully and prudently. It can be easier to have jurors admit they favor a party or a position rather than have them agree they harbor a prejudice.
Educating the Jury

Informing the panel about issues counsel deems important for them to understand must be accomplished by counsel asking informative questions. Areas that may need to be addressed are:

  • Critical Facts
  • Background of parties
  • Identity of lay and expert witnesses
  • Elements of claims and defenses
  • Examples of evidence
  • Burden of Proof
  • Controlling legal issues
  • Weaknesses and strengths in the case
1.07.6 Developing and Maintaining Rapport

The initial and ongoing perceptions of the lawyer and the client by the jurors affect the ability of counsel to influence the jury as the trial progresses. Areas that impact rapport with jurors include:

  • Address. Jurors are to be addressed by their last names along with their proper form of address or title.
  • Demeanor. Counsel must appear professional, organized, and confident in front of jurors.
  • Appearance. The attorney’s proper clothing and appropriate body language must be maintained throughout the process.
  • Respect. Counsel needs to ask respectful questions and display a sincere interest in the responses.
  • Explanations. Pertinent questions that permit jurors to clarify or amplify their responses can relax them.
  • *Pace. *The moderate pacing of questions can create a comfortable atmosphere.
  • *Tone. *Counsel may need to persist in seeking responsive answers but must avoid becoming overly assertive.
  • Acknowledgement. The recognition by counsel of a juror’s concern or anxiety can help maintain an appropriate ambiance.
  • Humor. Humor is helpful as long as it is appropriate and not unnecessarily artificial.
  • Hostile jurors. Dealing with a hostile juror can be avoided by not asking additional questions when it becomes clear the juror needs to be removed. A candid and amicable approach towards a hostile juror may defuse hostility and turn a negative experience into a positive moment.
  • *Gratitude. *Thanking the jurors must be done sincerely.

H. Challenging Jurors

1.08 Types of Challenges

Attorneys may remove a juror based on two primary types of challenges—challenges for cause and peremptory challenges. A third and rare challenge—a challenge to the array of the entire panel—confronts the lawfulness and constitutionality of the overall process used to select the pool of jurors.

Challenges for Cause

This challenge seeks to remove a juror from the panel for lack of qualifications, actual bias or prejudice, or an implied bias. Statutes, rules, or case law establish the grounds supporting a challenge for cause.

  • Establishing bias or prejudice. Establishing bias or prejudice is based on the juror’s response. It must be shown the juror is so obviously sympathetic or prejudiced that it would be impossible for the juror to be fair.
  • Procedure for challenge. An attorney must request the court to remove a juror for cause, stating the grounds for the challenge. The challenge is usually made outside the hearing of the jurors.
  • Number of challenges. There is no limit to challenges for cause. Judges vary on their rulings. Some are reluctant to grant challenges because the grounds can be difficult to establish. Others are concerned that counsel may seek to remove decent jurors and delay the trial. Still others will rule based on appropriate grounds and juror responses.
  • Strategies for exercising challenges. A challenge for cause is usually made before peremptory challenges. An attorney should establish objective reasons, determine the judge’s practice for granting challenges, and assess whether the type of case will support the granting of a challenge. If peremptory challenges are no longer available, a challenge for cause may still be granted. Attorneys should also compare the replacement jurors from the panel with the prospective jurors available.
  • Options for the challenging attorney
  • Convince the juror to state explicitly that the juror is unalterably biased.
  • Hope the judge will decide to excuse the juror without a challenge.
  • Anticipate that opposing counsel will challenge a juror for cause.
  • Challenge the juror for cause.
  • Options for the opposing attorney
  • Oppose the challenge and argue that the juror is qualified.
  • Request that the judge ask rehabilitative questions.
  • Seek permission of the judge to ask rehabilitative questions.
  • Join in the challenge for cause.
  • Rehabilitation procedures. When a juror has demonstrated a lack of fairness, the attorney who wishes to retain the juror can ask rehabilitative questions designed to show that the juror can be fair and impartial. New information may be developed to rebut facts supporting a cause challenge.
  • Reversing apparent bias or prejudice. The goal of the rehabilitating attorney is to establish reasons why the juror can be impartial and to obtain a commitment from the juror to be fair in spite of a potential problem raised by the other side.
  • Replacement juror. If a replacement juror was not in the courtroom during preliminary explanations these instructions should be repeated. The process of questioning and challenging replacement jurors is the same process used for previous jurors.

As with other voir dire tasks, LLM-backed tools can parse voir dire responses and questions, tie juror statements to recognized grounds for cause, and propose follow-ups that lock in clear, unequivocal bias on the record. GenAI can draft succinct challenges, as well as rehabilitation-resistant sequences. LLM-backed tools can also supply counterarguments, as well as attorney-led or judge-led rehabilitation.

1.08.2 Peremptory Challenges

These challenges permit the attorney to remove a limited number of prospective jurors from the panel without any reason or explanation to the court. However, members of constitutionally protected classes (e.g., race and gender) may not be removed unless good cause exists. See § 1.08.3. The number of peremptory challenges available to each party is controlled by statute or court rule and type of case. Commonly, in civil cases, each side may have two or more challenges for a jury of six. For criminal cases, more challenges may be available. The method of exercising peremptory challenges varies. Three available ways to assert peremptory challenges include:

  1. The plaintiff and defendant each strike an equal number of jurors at the conclusion of the questioning.

  2. The plaintiff and defendant alternate striking jurors, with one side proceeding first followed alternately by the other side.

  3. The plaintiff and defendant independently list the names of jurors to be removed after questioning, and the list is provided to the judge who announces the jurors to be removed.

1.08.3 Opposing Peremptory Challenges

A juror may not be removed for an improper, unconstitutional basis. A party may successfully challenge the removal of a prospective juror if the removal is based on race, religion, gender, or other unconstitutional basis. The party seeking to remove the juror must demonstrate a proper independent basis for removal.

1.08.4 Alternate Jurors

One or more alternate jurors will be selected to sit as an extra juror to replace another juror who becomes unable to complete the trial. The number of alternates usually depends on the length and complexity of the case. Alternate jurors may be excused when the jury begins deliberations, or the judge may allow them to deliberate with the other jurors.

1.08.5 Juror Questions During Trial

Traditionally, jurors could not ask questions during a trial. There are judges who permit jurors to submit witness questions to the judge. The judge will review them to make sure they are appropriate; and, if they are, a lawyer or the judge will ask the questions of the witness.

I. Misconduct and Objections

1.09 Standards

State and local rules of procedure, the applicable rules of professional responsibility, rules of decorum, and common sense establish standards for proper conduct by attorneys and jurors during jury selection.

1.09.1 Inadmissible Evidence

Questions designed to introduce inadmissible evidence and prejudice the jury are improper.

1.09.2 Improper Questions

Queries that do not seek proper and relevant responses may not be asked during jury selection. See Section G.

1.09.3 Questionable Topics

There may be a good-faith basis for asking questions about an area that is relevant, although sensitive or controversial. These questions should be carefully crafted and may require permission from the court before being asked.

1.09.4 Currying Favor

Trying to seek or gain favors by flattering jurors is improper.

1.09.5 Improper Communications

Communications with jurors before and during trial are restricted to the courtroom during official proceedings. Other contacts are forbidden.

1.09.6 Misconduct by Jurors

Jurors commit misconduct if they answer jury selection questions falsely, violate court rules, or fail to follow directions of the judge. Trial attorneys have a duty to immediately report juror misconduct.

1.09.7 Objections

Attorneys may object to the jury selection questions and the conduct of opposing counsel, and before doing so should consider: the prejudicial impact of the questioning, the extent that opposing counsel is actually using jury selection for improper purposes, and the tolerance level of the judge for prolonging procedures.

1.09.8 Misconduct by Attorneys

Lawyers must maintain a fair and impartial relationship with prospective and actual jurors before, during, and after trial. It is unethical to talk with jurors individually or in a group, contact any friends or relatives of jurors, or have a colleague or client contact a juror or friends and relatives.

1.09.9 Improper Conduct by Counsel

The following conduct is improper during jury selection:

  • Arguing the case, the law, or the facts.
  • Improperly indoctrinating the jury.
  • Referring to inadmissible evidence or topics.
  • Probing responses that have no bearing on subjects within the scope of jury selection.
  • Asking questions that incorrectly explain the law.
  • Repeating areas of inquiry already explored by the judge or opposing counsel, although counsel may seek to clarify or obtain additional relevant information.
  • Unfair, embarrassing, or alienating statements that serve no legitimate purpose.
  • Questions asking for a firm commitment from jurors regarding a controversial issue, as these inquires may require the jurors to pre-judge a matter before they hear the evidence. See § 1.06.6.

Instructing the Jury

A. Jury Instructions

2.01 Planning and Timing

An essential part of the planning process involves preparing and selecting jury instructions and verdict forms. It is critical that the submissions to the jury be composed early during case preparation as they can shape the direction and focus of the trial presentation, even though they need not be submitted to the court until later. Jury instructions directly affect what is asked in jury selection, what is asserted in the opening statement, what evidence is presented, and what is concluded in summation.

GenAI can draft theme lines, story arcs, and visual frameworks that track admissible proof and can stress‑test themes against anticipated objections and in limine orders.

2.02 Right to Jury Instructions

A party usually has a right to an instruction if evidence has been introduced to support the instruction and if the instruction correctly states the applicable law. Counsel needs to ensure jury instructions accurately explain the elements of the law involved in the case, the legal issues underlying the claims or defenses, and any other material issues in a case.

2.03 Sources of Instructions

Instructions, also called the charge to the jury, must be based on the law of the jurisdiction. Case law, statutes, rules, and other legal authorities provide the basis for the content of the instructions. Nearly all jurisdictions have jury instruction guides (JIGs) or “pattern instructions” that are generally recognized and accepted.

2.04 Types of Instructions

There are several types of instructions:

Preliminary instructions. These are instructions the judge gives the jury at the beginning of the case that explain to the jury their responsibilities during the trial and may also include an explanation of the law applicable to the case.

Periodic instructions. These are instructions given periodically during the trial, particularly when the issues are complex or unusual.

Cautionary instructions. These are instructions given before recesses and adjournments to remind jurors to conduct themselves properly.

Curative instructions. These are instructions given after an inappropriate event has occurred. The instruction is given to repair damage done by improper testimony, questions, or behavior. A motion for a curative instruction is a request for the judge to advise the jury to disregard the objectionable matter.

Final instructions. These instructions fall into two categories—general and specific. General instructions apply to all cases and involve conduct such as the role of jurors, burden of proof, and credibility. Specific instructions include the legal theories and elements of the claims and defenses applicable to the specific case.

2.05 Verdict Forms

There are different types of verdict forms:

  1. General verdict. In this form, the jury succinctly finds for or against a party.

  2. Special verdict. A special verdict form requires jurors to answer specific questions and make findings of fact on critical factual issues.

  3. General verdict with written interrogatories. This form combines both a general verdict with specific interrogatories. The answers to the interrogatories must be consistent with the general verdict determinations.

2.06 Proposing a Verdict Form

The type of case and nature of the issues determine which verdict form should be used. In criminal cases, the general verdict form is usually used. In personal injury cases, special interrogatories are typically used. Procedural rules and case law establish guidelines for how verdict forms should be used. Jury Instruction Guides in a jurisdiction often include mandates or suggestions for the use of the appropriate form.

LLMs can propose verdicts and special interrogatories that track elements and defenses, and can also stress test for clarity and consistency.

B. How to Plan and Submit Jury Instructions

The preparation of jury instructions begins early in the case, as explained previously. The jury instructions contain the legal elements reflected in the claims and defenses and provide an outline of the elements of law that need to be proved. The final instructions must be consistent with the evidence presented during the trial, and should reflect the legal issues that need to be resolved.

2.07.1 Clear and Understandable Instructions

Instructions should be drafted to accurately reflect the law and explain the legal issues, and should use words that are understandable to the jurors, and should not be biased in favor of one party.

2.07.2 Withstanding Challenges

Opposing counsel may challenge proposed instructions by objecting to the use of certain words, phrases, or instructions. To withstand a challenge, the instructions must correctly and completely explain the law.

2.07.3 Ethical Rules

Ethical rules prohibit an attorney from knowingly making a false statement of law to the court and from failing to disclose controlling legal authority adverse to the client’s position.

2.07.4 Complete Set of Instructions

The instructions must cover all legal and factual issues and must be thorough and comprehensive.

2.08 Submitting Instructions

Instructions must be submitted in accord with the applicable rules of procedure, and must ordinarily be in writing. See [FRCP 51](https://www.westlaw.com/Document/N2DA6E7C0B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N2DA6E7C0B96811D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) & FRCrimP 30. Some courts require a memorandum of law to be submitted in support of significant instructions. Instructions may be submitted depending on the preference of the judge and the type of instruction. General or less important instructions that appear in the JIGs may be submitted by providing the judge with a printed or electronic list of the respective numbers from the pattern JIGs.

C. Jury Instructions and Procedures

2.09 Jury Instruction Conference

After the attorneys have submitted their proposed instructions and verdict form to the judge, the judge decides what instructions are to be given and which verdict form is to be used. The judge bases this decision on the appropriateness of the proposed instructions, revisions of proposed instructions, and the inclusion of other instructions. Counsel will be informed of the final instructions before summation.

2.10 The Judge’s Charge

The judge instructs the jury in open court before or after final arguments. Most commonly, the judge instructs after summations. Many jurisdictions permit judges to comment on the evidence. The verdict form is explained to the jury, and is to be completed by the jury. It is common for the jurors to have a copy of the written instructions during deliberations.

2.11 Objecting to Instructions and Verdict Form

Errors made in jury instructions are a ground for the trial judge or appellate court to grant a new trial. The standard for a new trial and appellate reversal is whether an instruction was legally accurate and whether evidence supported the instruction. Minor errors may be harmless and may not support a new trial. An objection needs to be made before or at the time the improper instruction is given.

Objections to proposed instructions include:

  • No factual support in the record exists for the proposed instruction.
  • The proposed instruction misstates the law.
  • The proposed instruction fails to follow the instructions approved in the jurisdiction.
  • The proposed instruction is repetitive, cumulative, or confusing to the jury.
  • The proposed instruction is unfairly prejudicial towards a party.
2.12 Stipulations in Jury Trials

Counsel may stipulate to certain efficient procedures. Before the case is submitted to the jury, the judge may request, or the attorneys may suggest, that the following stipulations be agreed upon:

  • The court, in the absence of counsel and the parties, may re-read and explain to the jury in open court any instructions previously given or answer any relevant questions if the jurors request such information while they are deliberating.
  • The parties waive the right to have the clerk or court reporter present when the jury returns a verdict (as their presence may not be needed).
  • A sealed verdict may be returned and later opened in the presence of court and counsel (which may be appropriate in common cases).
  • The parties waive their right to be present when the jury returns the verdict and allow the judge to announce the verdict in open court on the record (not a common stipulation).
  • The parties waive their right to poll the jury (polling is unusual in most cases).
  • A stay of entry of judgment for an agreed upon number of days shall be granted after a verdict (a usual stay).

D. Jury Deliberation Procedures

2.13 Deliberations

Jurors typically deliberate during normal court hours on weekdays until they reach a verdict. If they deliberate more than one day, they usually go home and return for continued deliberations the following day.

2.14 Sequestering the Jury

In major criminal cases and well-publicized civil cases, the jury may be sequestered during deliberations and stay at a place other than home.

2.15 Jury Instruction Materials

A copy of jury instructions is typically provided to the jurors during deliberations.

2.15.1 Exhibits

The trial judge has discretion to decide which exhibits received into evidence will be allowed in the jury room during deliberations. Real evidence is often allowed in the jury room; demonstrative evidence may or may not be allowed.

2.15.2 Notes Taken by Jurors

Although jurors are often allowed to take notes during the course of the trial, some judges do not allow the jurors to bring these notes into the deliberation room as they may be overly influential.

2.15.3 Questions by Jurors

Jurors may ask limited types of questions during deliberations. If a jury has questions regarding instructions, the foreperson can write a note to the judge asking the question or requesting to meet with the judge to have the question answered. The judge will decide what should be done, and consult with the attorneys, prepare an answer, and announce the question and answer in open court.

2.16 Unanimous Jury Verdict

In criminal cases, a jury verdict must usually be unanimous. In civil cases, verdicts are typically unanimous, but many jurisdictions allow non-unanimous verdicts in some cases or if deliberations exceed several or more hours.

2.17 Deadlocked Jury

If the required minimum number of jurors cannot agree on a verdict after a significant amount of time, the jury is said to be “hung,” and the judge may discharge them and declare a mistrial. Or, a judge may order the jurors to return for further deliberations until it appears they cannot reach an agreement.

E. Complex Cases

2.18 Assisting the Jurors

Effective presentations that help jurors understand the facts, issues, and law are particularly important in complex cases. A trial judge has broad discretion in developing suitable approaches.

Suggestions that may assist the jurors include:

  • Provide individual jurors with a notebook that contains the jury instructions.
  • Include in the notebook uncontroverted facts in summary or detailed fashion.
  • Insert a glossary that defines technical terms.
  • Include a witness list that concisely identifies each witness and includes photographs of the witnesses and copies of all exhibits or relevant parts of exhibits.
  • Permit jurors to take notes during the trial which can be collected by the clerk each day and returned to the jurors the following day.
  • Add a copy of the final instructions before summations including special interrogatories.
  • Allow jurors to use their notebooks during deliberations
  • Prepare juror instruction directions which provide the jury with a structure to deliberate.

GenAI can translate complex testimony into short, neutral summaries for closing refreshers, suggesting themes that track evidence and avoid argument. LLMs can also outline element‑by‑element closings with cite‑linked record references.

F. Return of the Verdict

The foreperson informs the bailiff when a verdict has been reached. The bailiff then advises the clerk or the judge, who contacts trial counsel. Criminal defendants have a right to be present and almost always are present when the verdict is read. Civil parties may decide not to be present.

2.19 Polling the Jury

After the verdict has been read, and before the jurors have been dismissed, the attorney who has lost may request that the jurors be individually polled, which involves asking each juror individually if the juror voted for the verdict.

2.20 Discharging the Jury

After everything has been completed, the judge thanks the jurors and discharges them.

2.21 Contacting Jurors

A trial attorney may or may not talk with the jurors after they have been discharged. Counsel can never inquire into the jury deliberations. They may be able to ask jurors to comment on how the lawyers performed or could have done a better job. Jurisdictions and judges have limitations on what is allowed.

2.22 Misconduct of the Jury

Misconduct may be grounds for a new trial. It must be of such a substantial nature that a party has been adversely and prejudicially affected leading to an unjust verdict.

2.22.1 Impeaching a Verdict

A verdict will not be vacated unless some highly prejudicial information or improper influence has affected the decision of the jurors. Most jurisdictions prohibit a juror from testifying about discussions during deliberations or what happened. See [FRE 606(b)](https://www.westlaw.com/Document/N5DAD5230C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N5DAD5230C0F511D8A8CA80DCF7582C6A/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Jurors may testify only in unusual circumstances where extraneous prejudicial information was improperly brought to the juror’s attention or where outside influence was brought to bear on a juror. The ability to impeach a verdict is severely limited to insure the finality of verdicts.

2.22.2 Motion to Question the Jurors

Counsel who receive reliable information that unfairly prejudicial matter may have adversely affected jury deliberations may move the court for a hearing, which in extraordinary cases may be granted with the judge asking relevant questions of jurors to determine whether any reversible error occurred.