Thursday, March 11, 2010

Parameters of Voir Dire

By John DiMotto
This issue of how much control a judge should take with respect to the attorneys' role in voir dire (jury selection) is hotly debated among the bench and bar. Should attorneys be given unlimited access to the jury panel or should the judge put limitations on the questioning? Should the judge allow the attorneys to ask their own questions or should the judge do all the questioning himself/herself and only allow the attorneys to submit questions for the judge to consider? Should the judge put time limits on the attorneys? Should the judge put limits on the topics the attorneys may pursue? These questions are answered by each individual judge. There is no uniformity. How voir dire proceeds is within the sound discretion of the trial judge.
I personally believe that the judge should divide voir dire into four sections.
First, the judge should explain to the jury what a jury trial consists of from the time the jury panel walks into the room until they are excused after deliberations have concluded. It is critical that the judge tell the jury what to expect in order to relieve any anxiety the jurors are experiencing as a result of just being there. Jury service is very foreign to most people. Their knowledge base is from what they see on TV or in the movies and that is not a true representation of how jury trials work. When I "debrief" the jury at the end of the trial -- find out what they thought of their experience -- they always say they appreciate the fact that I took the time to explain how a jury trial proceeds and dispel myths about jury service.
Second, the judge should do a thorough voir dire "general" individual questioning of the jury himself/herself in terms of obtaining juror biographical data. If the judge does efficient but thorough individual questioning of each juror, he/she presents the attorneys with a verbal CV of each person. My questions are intended to reveal who this person is via their words and their demeanor. It is not necessarily what a juror says but how he/she says it that is important. Attorneys should pay close attention to both. In doing this, I connect with the jurors and I believe I earn their trust so that when I read instructions about not discussing the case while it is in progress and when I tell them not to communicate on the internet via social networks or blogs that they will follow the instructions.
Third, the judge should ask some questions of the entire panel on topics specific to the case. For example, in a PI auto case, I ask questions about their own experiences with accidents, insurance companies, claims, lawsuits, nature of injuries, etc. This will highlight for the attorneys which panel members may need their attention when they question the panel.
Fourth, I give the attorneys a fair amount of latitude in asking their questions. I realize that attorneys want to accomplish, at a minimum, three things. They want to get information. They want to connect with the jurors. They want to convey to the jurors that they can be trusted. These are reasonable goals.
I realize that the goals of the court and the goals of the attorneys are different. The judge wants to make sure that the jurors will be fair. The attorneys want jurors who will accept their proposition. Actually, both goals can be achieved if the judge takes control of the voir dire.

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