Voir Dire
Voir dire (literally meaning "to
see, to tell"), that period of the trial during the jury selection
process where questions can be asked of prospective jurors either by the
judge alone or with the assistance of counsel, is reputed to have been
utilized by litigants to select favorable jurors since the medieval
period.
Irwin A. Horowitz, Juror Selection - A
Comparison of Two Methods in Several Criminal Cases "in" In The Jury Box
- Controversies in the Courtroom, 63 (Lawrence S. Wrightsman, Saul M.
Kassim and Cynthia E. Willis eds. 1987). It is part of the mainstream
procedure in state criminal courts in the United States and becoming
more common place in federal criminal courts as well.
Consequently, the time spent on
selecting a jury is drastically reduced in England, while in the United
States, more time can be spent selecting the jury than presenting the
evidence. In federal criminal courts of the United States, prospective
jurors are questioned to determine if they are suitable to judge the
facts.
Questions may be asked not only to
determine if the juror has any personal interest in the case, but also
about their general beliefs and prejudices. A juror is naturally
expected to "speak truthfully" or "to say the truth," i.e. voir dire.
The judge has great discretional control over how this voir dire process
is conducted. Ordinarily, these questions are directed to a group of
prospective jurors at the same time. However, in certain cases, the
judge will remove from the courtroom all but a single individual for
examination.
In theory, voir dire is used to learn
more about existing prejudices on the part of the prospective jurors.
Questions can be wide-ranging or more specifically related to the case,
depending on what the court allows. Sometimes, however, it is hard to
understand the relevance of certain questions. For instance, during the
voir dire of one of the prospective jurors in the first Oklahoma City
bombing trial in Denver, the following series of questions and answers
were recorded: (Juror No. 568 — Voir Dire)
Voir Dire
Q ...I
understand you have some interest in riding your bicycle?
A Yes, sir
Q And country and western dancing?
A Yes, sir
Q Ever go to the Grizzly Rose
A Yes sir
Q ...on occasions? Were you out there when
Brian White and Leann Rimes, two good Oklahomans, were there two
weeks ago?
A No, sir. I would have liked to have gone, I have a couple of Leann
Rimes' CDs. She's a fabulous singer.
Reading this line of inquiry makes one almost forget that the trial
was about a horrific crime. No wonder this was prospective juror
number 568! What sort of relevant prejudice were these questions
aimed to elicit? Would this juror be unsuitable if he didn't like
riding bicycles or the western music fan to this trial? Has a
juror consultant warned that lovers of country and western music
and, in particular, Brian White and Leann Rimes fit a "favorable" or
"unfavorable" profile?
Or was it an insidious attempt by
that attorney to ingratiate himself with the juror by displaying his
appreciation of country and western music? There are, however, valid
aspects of attorney-led voir dire. One is to form agreements with
the prospective jurors about being fair and impartial. Get them to
commit to certain propositions. For instance, have them agree to
follow the law as given by the judge whether they agree with that
law or not. Someone who can't make this commitment will surely be
dismissed for cause.
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