Chapter §47.6 Analysis

• Jurisdiction: Washington

§47.6 ANALYSIS

This section discusses the provisions of CR 47 and the statutes that are referenced regarding the conduct of voir dire and the interface with jurors during trial.

(1) CR 47(a): Examination of jurors

CR 47(a) provides that the court may conduct the examination of jurors, but it must permit the parties or their counsel to supplement the examination with reasonable questions. Attorney-conducted voir dire remains the practice in Washington courts. Reasonable time restraints and the efficient use of juror questionnaires also promote judicial economy. Finally, most if not all counties use the struck juror system or some variant, allowing questions to be directed to the panel as a whole, and to individual jurors, which generally results in greater efficiency and more expeditious selection of the final jury panel.

Practice Tip: Consider submitting case-specific jury questionnaires to the court to be completed by jurors before voir dire questioning begins. The questionnaire can supply jurors' answers to important but repetitive questions without the risk of creating boredom for the jury and misusing the court's time. This is particularly important if you must ask questions that may embarrass some jurors. These questionnaires can be filled out by the jurors in the jury room before the voir dire process begins. Further questioning on a sensitive topic such as abortion or arrest can be done outside of the presence of other jurors with the court's permission, but must still be done in open court.

Caveat: Not all trial judges are receptive to juror questionnaires, even when agreed upon by counsel. Most will at least consider the idea if the questionnaire is only a page or two long.

The court must allow counsel latitude in examining jurors so that counsel can exercise peremptory challenges wisely as well as make challenges for cause. Hoyt v. Indep. Asphalt Paving Co., 52 Wash. 672, 677, 101 P. 367 (1909); Rowley v. Grp. Health Coop, of Puget Sound, 16 Wn.App. 373, 378, 556 P.2d 250 (1976). The limits and extent of questioning rest within the sound discretion of the trial court. State v. Davis, 141 Wn.2d 798, 825, 10 P.3d 977 (2000); State v. Yates, 161 Wn.2d 714, 168P.3d359 (2007), cert, denied, 554 U.S. 922 (2008). A trial court's ruling regarding the scope of voir dire may not be disturbed on appeal absent both an abuse of discretion and a showing that the appellant's rights have been substantially prejudiced thereby. Yates, 161 Wn.2d at 747; State v. Brady, 116 Wn.App. 143, 147, 64P.3d1258 (2003), review denied, 150 Wn.2d 1035 (2004).

The court's discretion includes assuring that an impartial jury is selected with reasonable expedition and varying the time allowed to each party. Brady, 116 Wn.App. 147.

In Brady, Division II found an abuse of discretion when, in a complex case with important issues, the trial court, in the middle of voir dire, decided to eliminate one of two planned voir dire sessions, thereby removing the chance for two attorneys to ask questions reserved for the second session and giving those attorneys no opportunity to adjust to the court's decision. 116 Wn.App. at 147-48.

A trial court may refuse to permit specific questions, and such a ruling will not be reversed absent an abuse of discretion, which occurs only if the permitted questioning is not reasonably sufficient to test the jury for bias or partiality. State v. Frederiksen, 40 Wn.App. 749, 752, 700 P.2d 369, review denied, 104 Wn.2d 1013 (1985).

Three situations require specific voir dire questions because of a real possibility of prejudice: (1) when the case carries racial overtones; (2) when the case involves other matter (e.g., the insanity defense) concerning which either the local community or the population at large is commonly known to harbor strong feeling that may stop short of presumptive bias in law yet significantly skew deliberations in fact; and (3) when the case involves other forms of bias and distorting influence which have become evident through experience with juries (e.g., the tendency to overvalue official government agents' testimony).

Id. at 753 (citing United States v. Jones, 722 F.2d 528, 529-30 (9th Cir. 1983)).

If the trial court disallows avoir dire question, the proponent of the question should specifically object to the court's ruling and make an offer of proof to show that the question might expose a juror's prejudice and that the proponent's intentions are not improper. Id. at 755.

In general, a prospective juror's religious affiliations and beliefs are not proper subjects of inquiry during voir dire. Yates, 161 Wn.2d at 714; Wash. Const, art. I, §11 (providing, in part, that no person "shall ... be incompetent as a witness or juror, in consequence of his opinion on matters of religion"). However, if the case involves religious issues "or if the information is a necessary predicate for a voir dire challenge," such questions may be proper. Yates, 161 Wn.2d at 747 (quoting State v. Davis, 504 N.W.2d 767, 772 (Minn. 1993).

In Yates, the court found no abuse of discretion in the trial court allowing the parties to reasonably explore whether a juror's religious views would compromise his or her ability to be impartial in applying the death penalty law. It also rejected the argument that the defendant was substantially prejudiced in his rights to a fair jury, even though he was not permitted to ask general questions regarding religious affiliations and beliefs. The court concluded the defense had "ample latitude to explore the prospective jurors' religious beliefs as they related to the death penalty." Id. at 748-49.

Although intensive voir dire may reduce the likelihood of prejudiced jurors, most individuals are not inclined to admit prejudice or are unable to recognize it, making it unlikely that an attorney will be able to excuse a juror for cause. "[I]ntensive voir dire is apt to put the juror on the defensive and engender resentment toward the client of the attorney who pursues it." Federated Publ'ns, Inc. v. Swedberg, 96

Wn.2d 13, 17-18, 633 P.2d 74 (1981), cert, denied, 456 U.S. 984 (1982). Skilled lawyers will avoid attempting to obtain such an admission if it is unlikely to succeed and instead use their preemptory challenge to eliminate the juror from the panel.

Practice Tip: Never embarrass prospective jurors, particularly in thepresence of other jurors. Upon request, most judges will permit questioning a juror in private if the subject is sensitive.

Practice Tip: Another useful procedure to avoid embarrassing a juror is to ask general questions that are phrased in such a way that the juror may conceal private information but still reveal that the juror had an experience or knowledge that is pertinent to further inquiry. An example of this is to ask jurors if they, or anyone they know, has had a certain experience.

Questions designed to indoctrinate prospective jurors on the issues of the case or to engage in a vague, speculative inquiry to see if something prejudicial can be revealed are improper. Frederiksen, 40 Wn.App. at 755. The proponent has the burden of showing that the question is "reasonably calculated to discover an actual and likely source of prejudice." Id. at 756. When the court itself questions the jurors, the judge must carefully phrase the questions to avoid any appearance of commenting upon the merits of the case. Snyder v. Gen. Elec. Co., 47 Wn.2d 60,67,287 P.2d 108 (1955); see Wash. Const, art. 4, §16 ("Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law.").

The right to examine or challenge prospective jurors is a privilege that can be waived. State v. Tharp, 42 Wn.2d 494, 500, 256 P.2d 482 (1953). A party may choose to accept the first 12 jurors (or lesser number if he or she consents) without question or challenge. The waiver is final and cannot be conditioned upon a favorable verdict. Id. at 501.

No statute or rule in Washington requires that an oath be administered to prospective jurors before the voir dire examination, but such an oath is routinely administered. Id. at 499. Omission of the voir dire oath could be considered a trial error. Id. at 501; see also State v. Lloyd, 138 Wash. 8, 14, 244 P. 130 (1926). Counsel must object to the omission immediately upon discovery so that the trial court may promptly correct the error, or it will be deemed to have been waived. Tharp, 42 Wn.2d at 501; State v. Hyder, 159 Wn.App. 234; 254-55, 244 P.3d 454, review denied, 171 Wn.2d 1024 (2011).

(2) CR 47(b): Alternate jurors

CR 47(b) provides that alternate jurors may be called and impaneled to replace regular jurors who at any time become unable or disqualified to perform their duties. The rule provides that an alternate juror may be recalled at any time to serve, including in the second phase of a bifurcated trial. CR 47(b).

Alternate jurors shall be drawn in the same manner and have the same qualifications as the regular jurors. See CR 47(d); RCW 2.36.070; RCW 4.44.120. Alternate jurors are subject to the same examination and challenges as regular jurors and must take the same oath. CR 47(b) authorizes additional peremptory challenges to each side if alternate jurors are impaneled. The additional challenges may be used against an alternate juror only, and the original three challenges granted pursuant to RCW 4.44.130 cannot be exercised against an alternate. Pursuant to CR 47(b), one additional peremptory challenge will be granted each side if one or two alternate jurors are impaneled, two additional peremptory challenges if three or four alternates are impaneled, and three additional peremptory challenges if five or six alternates are impaneled.

CR 47(b) directs the court to take appropriate steps to protect a temporarily excused alternate juror...