Voir Dire
Voir dire is the process by which attorneys and judges question prospective jurors before a trial to assess their suitability to serve. It is also used, less commonly, to describe a preliminary examination of a witness or expert to determine competency. The term is older than the American legal system and considerably more interesting than most jury selection coverage suggests.
What It Is
Before a jury trial begins, a pool of prospective jurors — the venire — is summoned to the courthouse. From this pool, the court and attorneys select the trial jury through voir dire. The questioning process has two purposes: identifying jurors with actual bias that would prevent them from rendering a fair verdict, and allowing attorneys to exercise their peremptory challenges strategically.
Judges conduct voir dire differently across jurisdictions. In federal court, judges typically control the questioning, asking their own questions and allowing attorney follow-up in limited fashion. In many state courts, attorneys conduct voir dire directly, giving them substantially more time with the venire.
The process produces two types of challenges. A challenge for cause removes a prospective juror who has demonstrated actual bias — a relationship with a party, a stated inability to apply the law, a financial interest in the outcome. There is no limit on challenges for cause; if the court agrees bias exists, the juror is excused. Peremptory challenges allow attorneys to excuse jurors without stating a reason, up to a limited number per side. The Batson v. Kentucky doctrine (1986) limits peremptory challenges — they cannot be used to exclude jurors on the basis of race, sex, or other protected characteristics.
Etymology
The phrase comes from Law French — the anglicized French used in English courts from the Norman Conquest through the early modern period. Voir means “to see” or “to speak truly” (from Latin verum, true); dire means “to say.” The full phrase means roughly “to speak the truth” — reflecting the oath prospective jurors take to answer questions honestly. Law French preserved many such phrases that persist in legal vocabulary centuries after the language itself was abandoned.
A Concrete Example
In a high-profile civil case involving a pharmaceutical company, plaintiff’s attorneys use voir dire to identify jurors who have had personal or family experiences with the drug at issue, who work in the healthcare industry, or who have expressed general skepticism about personal injury litigation. Defense attorneys use the same process to identify jurors who may have had negative experiences with large corporations. Both sides exercise peremptory challenges against jurors their consultants identify as unfavorable, while preserving challenges for cause for jurors who express direct bias.
Common Misconception
Voir dire is widely portrayed in legal dramas as primarily a jury manipulation exercise — attorneys probing for favorable jurors rather than fair ones. While strategic jury selection is real, the formal legal purpose of voir dire is bias identification, not jury composition optimization. Peremptory challenges give attorneys some ability to shape the composition, but the number is limited and the pool is random. Studies of jury selection outcomes suggest that attorney intuitions about favorable jurors are often wrong, and that extensive voir dire produces juries that are, on average, not dramatically more favorable to either side than juries selected with minimal questioning.