Jury Trial: The Voir Dire Phase

By John DiMotto

In my last post, I discussed the importance of a judge establishing a trust relationship with the jury. The jurors need to have someone they can count on and look to for guidance in how they should conduct themselves. That person is the judge - the "referee" who enforces the rules and makes sure that everyone "plays" by them. The judge is not partisan. The judge does not take sides. The judge does not have a "horse in the race." It is a powerful role and every judge must make sure that he/she conducts himself/herself in a manner that reinforces for each member of the jury the awesome responsibility they have to follow the rules of the courtroom set forth by the judge and the instructions of law that the judge delivers to the jury so that the jury decision is only based on the facts as the jury finds them, in light of the law with the jurors using their common sense and long experiences in life.

After the judge has fully explained the nature of the case, the length of time for the trial and the format of the trial, the judge then begins the questioning of the individual jurors - the process by which information is obtained from each prospective juror so the lawyers can determine who will and who will not serve on the jury. This is Voir Dire. This is where the prospective jurors are asked to "speak the truth" about themselves and their views. This is the process by which the likes and dislikes of the jurors is discovered. This is where any biases or prejudices or predilections can be uncovered and revealed. It begins with the judge conducting the questioning.

Some judges are very active and ask many questions. I am one of these judges. I believe that based on my "trust relationship" they will be candid and will provide complete and accurate information in response to my questions. I believe that jurors understand that I am independent of the position of the parties and I am confident that they will be open and honest with me in response to my questions and that when I am finished they will so respond to the questions of the lawyers. I make it clear that the lawyers have the right and the duty to fully participate in the process and questioning and that jurors must respect that and answer each question of the lawyers with the same candor they used in answer to my questions.

The judge"sets the table" for the lawyers. It starts and ends with the judge.

In my next post, I will address voir dire from the lawyers perspective. Their goal in voir dire is different from the goal of the judge.