LAW OF JURY SELECTION

Importance of Attorney Conducted

Voir Dire

Attorney Conducted Voir Dire in a Judge Controlled State

WHERE THINGS STAND TODAY

A. MOST STATES LET THE ATTORNEYS DO

IT…

…OR THEY AT LEAST ALLOW

ATTORNEYS TO SUPPLEMENT THE COURT’S

VOIR DIRE

B. A FEW FEDERAL COURTS FAVOR

ATTORNEYS DOING IT“Voir dire examination in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties.”

- United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977)

C. JUDGES EVERYWHERE HAVE

DISCRETION

“[T]he manner and scope of the voir dire examination lies within the discretion of the trial court.”

- People v. Metcalfe, 202 Ill.2d 544 (2002).

D. MORE VOIR DIRE IS SEEN AS IMPORTANT

“The trial judge permitted no inquiry designed to elicit the venireperson’s attitudes toward the general nature or specific facts of the case…. [A] trial judge’s desire not to make the voir dire a big deal in a case that’s only going to last a couple of days is clearly subsidiary to his duty to impanel an impartial jury.” -Art Press Ltd. v. Western Printing Machinery, 791 F.2d 616 (7th Cir. 1996)

Attorney Conducted Voir Dire in a Judge Controlled State

SO HOW DO WE CONVINCEJUDGES TO ALLOW THE

ATTORNEYS TO DO MORE?

Attorney Conducted Voir Dire in a Judge Controlled State

I. WHAT JUDGESCARE ABOUT

A. JUDGES CARE ABOUT WHAT TIME IT

TAKES“A survey of 124 federal judges conducted by the Federal Judicial Center… reported no significant increase in jury selection times between those judges who allowed attorney conducted voir dire and those that did not.”

-Andreano, Voir Dire: New Research Challenges Old Assumptions, 95 Ill. B.J. 474, 475 (Sept. 2007)

B. JUDGES CARE ABOUT WHAT IT ALL

COSTS“The voters expressly found ‘that it is necessary to reform [California] law as [those laws ensuring attorneys have a right to participate in criminal voir dire] have unnecessarily expanded the rights of accused criminals… unnecessarily adding to the costs of criminal cases.’”- People v. Boulerice, 5 Cal.App.4th 463, 7 Cal.Rptr.2d 279 (1992)

C. JUDGES CARE ABOUT JUROR

PRIVACY

“While the parties have attorneys to champion their rights, the court must protect the Constitutional privacy rights of the prospective juror.”

- People v. James, 304 Ill.App.3d 52 (2nd Dist. 1999)

D. JUDGES CARE ABOUT ENSURING A

FAIR TRIAL“The trial judge is in the best position to determine whether questions raised in voir dire assure the presence of a fair and impartial jury without amounting to a prejudicial presentation of the evidence.”

- State v. Whitt, 2015 WL 1743093 (Mo.App. 2015)

Attorney Conducted Voir Dire in a Judge Controlled State

II. WHAT ATTORNEYSCARE ABOUT

A. ATTORNEYS CARE ABOUT WHO THEIR

JURORS ARE“Voir dire should be embraced as the litigator’s only opportunity to have a conversation with the people who will decide the case. There will be plenty of opportunities to talk to jurors, but voir dire is the only chance to talk with them.”

- Gilbert, Ollanick & Wenner, Overcoming JurorBias in Voir Dire, Trial Magazine (July 1997)

B. ATTORNEYS CARE ABOUT GETTING INFORMATION

“We have… encouraged open-ended questioning. We have strongly disapproved closed-ended questions that predetermine answers or elicit narrow yes-or-no responses. We have encouraged …questions that will provide insight into a juror’s views on a subject in controversy.”

- State v. Harris, 1998 WL 429915 (N.J. 1998)

C. ATTORNEYS CARE ABOUT INDOCTRINATING

JURORS “[I]t may become obvious parties are trying to commit the veniremembers about how they will take certain types of evidence…. [A] bright line rule for determining when a question constitutes [improper indoctrination] is difficult due to the nature of the issues involved [but such questions are not allowed].”

-Raby v. State, 970 S.W.2d 1 (Tex. App. 1998)

D. ATTORNEYS CARE ABOUT WINNING THE

CASE“Of the many reasons that …may explain plaintiffs' lower success rate in Massachusetts, Sylva focuses on only one-the absence of attorney voir dire in Massachusetts. Sylva does not… attempt to take into account the multiple other variables that may also be correlated with plaintiff success rates.”

- Sylva v. Anthony, 14 Mass.L.Rptr. 337 (Mass.Super. 2002)

Attorney Conducted Voir Dire in a Judge Controlled State

III. WHAT JURORSCARE ABOUT

A. JURORS CARE ABOUT WHY THEY’RE

HERE“Prospective jurors must be engaged in a dialogue about the …system, the procedural safeguards built into the system …and the importance of their service as jurors.”

-United States v. Grace, 408 F.Supp.2d 998 (D.Mont. 2005)

B. JURORS CARE ABOUT

THEIR PRIVACY“While the trial lawyer’s appetite for information Concerning prospective jurors may be insatiable, the burden is borne by [those] prospective jurors. As the scope of inquiry during voir dire has relentlessly expanded, resistance has been expressed by or on behalf of prospective jurors. “

- U.S. v. Padilla-Valenzuela, 896 F. Supp. 968, 971 (D. Ariz. 1995)

C. JURORS CARE ABOUT

IMPRESSING THE JUDGE“When the court asks all the questions, a

prospective juror is often influenced by social norms, providing ‘socially acceptable’ answers he or she believes the judge wants to hear. Survey data shows jurors look upon judges as important authority figures and are reluctant to displease them.”

-Ron Matlon, Strategies for More Effective Voir Dire, The Jury Expert (Aug. 20013).

D. JURORS CARE ABOUT

WHAT TO DECIDE

“Some jurors make up their minds before the trial begins, without conscious awareness of their decisions. Identifying such jurors during voir dire is imperative because the case may be over for them before it begins, even though they aren’t likely to acknowledge it.”

-Cusimano and Wenner, Selecting the Right Jury, Lawyers USA (May 2009)

Attorney Conducted Voir Dire in a Judge Controlled State

IV. WHAT ELSE YOUSHOULD CARE ABOUT

A. YOU SHOULD CARE ABOUT

JURY QUESTIONNAIRES“In the typical case, a written questionnaire works a significant advantage in time only when the prospective jurors’ written responses are made under penalty of perjury and can substitute for oral voir dire. This savings in time is not without a cost. The court, the parties and their attorneys lose the opportunity to observe demeanor….”

- U.S. v. Ruedlinger, 172 F.R.D. 453 (D. Kan. 1997)

B. YOU SHOULD CARE ABOUT PRE-TRIAL

CONFERENCES“The salutary, indeed the desirable and efficacious, purpose of a pretrial conference is to …determine the triable issues, both factual and legal, and to chart the course of the lawsuit accordingly….”

- Fortner v. City of Colorado Springs, 2012 WL 3834808 (D. Colo. 2012)

C. YOU SHOULD CARE ABOUT KEEPING TOPICS

RELEVANT“Maryland is one of the few states in the country that does not permit voir dire to inform the exercise of peremptory challenges. It has long been the rule in Maryland that voir dire is limited to the detection of bias sufficient to challenge a prospective juror for cause and not to assist in the exercise of peremptory challenges....”

-State v. Thomas, 369 Md. 202, 798 A.2d 566, 575 (2002) (Raker, J., concurring)

D. YOU SHOULD CARE ABOUT AVOIDING INDOCTRINATION

“The impression is inescapable that the aim of counsel [in attorney-conducted voir dire] is no longer exclusion of unfit or partial or biased jurors. It has become the selection of a jury as favorable to the party's point of view as indoctrination through the medium of questions on assumed facts and rules of law can accomplish.”

-State v. Howard, 192 N.J. Super. 571, 471 A.2d 796 (1983)

A. MORE OF WHAT’S

HAPPENING IN MASSACHUSETTS

“In addition to whatever jury voir dire of the jury venire is conducted by the court, the court shall permit, upon the request of any party's attorney or a self-represented party, the party's attorney or self-represented party to conduct an oral examination of the prospective jurors at the discretion of the court.”

--2014 Acts, Chap. 254, Section 2, Amending -Massachusetts Laws, Chap. 234, Section 28

LAW OF JURY SELECTION

Importance of Attorney Conducted

Voir Dire