The Fox's Disguise

• Citation: Vol. 37 No. 3
• Year: 2025

The Fox's Disguise

Vol. 37 Issue 3 Pg. 36

South Carolina Lawyer

December, 2025

FEATURE

PHOTO BY GEORGE FULTON

BY MELANIE C. REGIS

Preparing for trial can be a long and tedious process. Attorneys on either side spend countless hours developing a case theory and theme, reviewing evidence, preparing witnesses, organizing exhibits, and crafting opening and closing arguments, among other tasks. Despite an attorney's best efforts and their level of detail, what may truly impact the outcome of the trial is the members of the jury chosen during the voir dire process. Who shows up for jury duty is the one variable that is completely out of the hands of all those involved in the litigation process. Voir dire can make or break a case.

Attorney-conducted voir dire is one method of jury selection that has grown in its adoption across the country.^[1] South Carolina Rule of Civil Procedure 47 states a judge "may permit the parties or their attorneys to conduct the examination of prospective jurors."^[2] However, a similar rule does not exist for criminal trials in non-capital cases in South Carolina.^[3] The 2024 decision from this state's Supreme Court in State v. Rowell^[4] produces a new rule concerning juror concealment. The decision also raises the question about whether every criminal matter in South Carolina should permit both the government and defense counsel to conduct a more probing jury selection process through attorney-conducted voir dire.

The Decision in State v. Rowell

Juror 164's failure to disclose an arrest during voir dire resulted in the Supreme Court of South Carolina reversing the Court of Appeals and remanding the case for an evidentiary hearing.^[5] It also led to a shift in the way that courts must assess an omission or a false statement during the jury selection process. The Rowell decision, which overrules the state's earlier cases on the issue, eliminates the almost chimerical and fictitious line between unintentional and intentional concealment of certain facts by a juror during the jury selection process. With this distinction now gone, the Court has held that prejudice must be proven, regardless of how the juror's concealment originated. A new trial should be granted where a judge finds that the concealed information reveals a "potential for bias and would have made an objectively material difference in the moving party's use of a peremptory strike or resulted in a successful challenge for cause.'^[6]

The decision is no doubt monumental in that it represents a paradigm shift in the way that litigators in South Carolina will address information uncovered after a conviction. But is there a way to uncover this information before someone is convicted? There is— and the answer lies in allowing attorneys to conduct voir dire. This style of questioning potential jurors is allowed in federal practice^[7] and in many states, with New Jersey being a more recent adopter of the practice in 2022 under a pilot program.^[8]

The Rowell Supreme Court opinion describes the defendant, Adam Rowell's, convictions as two felony driving under the influence charges. Without more information the case may appear straightforward. However, the facts are a bit more complicated than that. Rowell was involved in a head-on collision. One of the victims, was seriously injured and the other victim was killed.^[9] Rowell was sentenced to 13 years in prison after his convictions.^[10]

Writing for the majority, Justice Hill's description of the voir dire process in Rowell's case states that the prospective jurors were asked whether they, a close friend, or a family member had "ever been arrested or charged with a criminal offense through any state, local, or federal law enforcement agency.''^[11] Juror 164 did not respond when the question was posed. It was only after Rowell was convicted that the defendant learned Juror 164 had been arrested the week prior to trial on several charges involving drugs and unlawful neglect of a child.^[12]

The question about arrests was the first in a series of questions. The jurors were not asked the 10 questions separately. Instead, the 10 questions were posed "collectively."^[13] Jurors were instructed that they only needed to come forward after all ten questions had been posed to them, and if they needed to respond to the inquiries. The court of appeals opined that "[ ]the structure of the questioning could have confused the average juror."^{[14] [15]}

Neither of the appellate opinions address how Rowell later discovered that Juror 164 was recently arrested. However, defense counsel argued that there had been no further contact with the juror because he was represented by counsel, who told the defense, Juror 164 would not be speaking to them.^[16] It should be noted that in holding that Rowell "failed to provide a sufficient record to support reversal" on the juror concealment issue, the court of appeals stated that defense counsel did not subpoena Juror 164 for the post-trial evidentiary hearing and therefore lost their opportunity to make that challenge.^[17]

The Earlier Standard—Intentional versus Unintentional

Before the decision in Rowell, an appellate court would have needed to asses whether the failure to disclose information, like an arrest, was done intentionally or unintentionally. In State v. Woods, the Court detailed the difference between the two.^[18] The prior analysis required a determination of whether the juror's omission or concealment was reasonable. An intentional concealment was unreasonable, where it was clear what was being asked of the juror and that the juror still failed to respond. On the other hand, if a question could be considered ambiguous, the omission or concealment seemed more reasonable.

The dichotomy between intentional and unintentional concealment led to different results. Where the omission or concealment was deemed intentional, the court inferred the juror was biased and a new trial was granted so long as the prejudice or bias would have supported a challenge for cause or been a material factor in exercising a peremptory strike.

Where there was an unintentional omission or concealment, bias had to be proved—it was not presumed. Citing State v. Lynch, the court of appeals in Rowell stated that when a court "finds no intentional concealment occurred, the inquiry ends there."^[19]

By jettisoning this "awkward" and inconsistent approach to investigating juror concealment, Justice Hill artfully wrote that, "[t]he nature of the fox's disguise matters little to the chicken."^[20] The new standard created under Rowell highlights the very reason why jurors are questioned at all during the voir dire process—to uncover any bias or discrimination that would prevent an impartial jury from hearing a case. Whether the juror's concealment was intentional or unintentional matters little to the defendant on trial.

Who's Asking?

And while the nature of the concealment now matters little to the court's analysis, it still matters who questions jurors. The primary goal of voir dire, which means "to tell the truth," is to solicit frank responses and information from prospective jurors. Proponents of attorney-conducted voir dire argue that attorneys are better suited to question jurors than judges and the process leads to more truthful responses. The attorneys on either side of the case know the facts, issues, and problem areas in their cases better than anyone else in the courtroom. A judge who questions jurors in a rote manner does not probe each prospective juror for the necessary bias. Opponents argue too much time is wasted empaneling a jury when attorneys conduct the voir dire themselves. In addition, attorneys on either side will undoubtedly try to indoctrinate the prospective juror to see the case their way.^[21] Each of these points will be addressed in turn.

First, according to a 2023 report from the National Center for State Courts (NCSC), "[a] large body of empirical research shows that attorney-conducted voir dire is more effective at soliciting candid information from jurors."^[22] One reason is that jurors may be less intimidated to answer a question posed to them by the attorneys litigating the case than the judge presiding over the trial. Further, many jurors may not be acquainted with the judicial system at all. However, they understand the reverence given to judges and may alter their responses when questioned exclusively by a judge. A juror may answer in a particular way to appease or even placate the judge. An experiment found that 116 people changed their answers when questions more than once when questioned by a judge and not an attorney.^[23] This conscious (or even subconscious) response may be eliminated when attorneys question prospective jurors.

Second, the same 2023 NCSC report also found that "[w]hen attorneys exclusively conducted voir dire, the length of voir dire increased by an average of 105 minutes."^[24] While this is time added on to the trial, it is beneficial to the truth-seeking process of trial. It is arguable that for most trials, adding less than two hours to the day to ensure an impartial jury will not create backlogs of cases or derail the trial court's resources. In fact, a detailed and extensive juror examination at the beginning of trial is preferred to the tedium of an evidentiary hearing after trial to determine the reason for the juror's concealment. In any event, judges should be granted the discretion to set time limits on the amount of time needed to question each juror.

Third and finally, there are plenty of guardrails that can be put in place to ensure that attorneys are not attempting to indoctrinate prospective jurors. Jurors are not blank slates. They come from different backgrounds and may have very different experiences from one another. Yet, jurors of the same gender, race, age, income or occupation will not all think the same. As a result, discriminatory questions on the part of the attorneys should be excluded. Parties can work together to create juror questionnaires ahead of time, which would also eliminate the need for extensive in-court questioning. The Commonwealth of Massachusetts, which adopted and passed a law allowing attorney-conducted voir dire in 2014, did so to reduce discrimination and bias in the jury selection process.^[25] Both the district and superior trial courts created new guidelines around the practice.

Although led by attorneys, judges still have a great deal of discretion in Massachusetts. Under Superior Court Rule 6. there is a detailed list of the questions that the parties or counsel cannot ask which include:

i. Questions framed in terms of how the juror would decide this case ...

ii. Questions that seek to commit juror(s) to a result, including without limitation, questions about what evidence would cause the juror(s) to find for the attorney's client or the party.

iii. Questions having no substantial purpose other than to argue an attorney's or party's case or indoctrinate any juror(s)....^[26]

A Different Outcome in Rowell

Now, consider the facts of Rowell again, but this time with the use of attorney conducted voir dire. The question regarding past arrests and criminal charges was the first of ten questions posed to the prospective jurors. Attorney-conducted voir dire would have allowed each prospective juror the opportunity to answer the questions separately. Jurors with concerns or issues would have also been encouraged by the attorneys to clarify any questions they had. Additionally, prior to the start of trial, the judge and attorneys would have addressed how to handle sensitive topics, like an arrest, for those prospective attorneys who answered in the affirmative. Individual voir dire at sidebar may have been the preferred method.

However, as described in the multiple opinions, Juror 164 may have stayed silent not because they wanted to intentionally conceal the arrest, but because the process was confusing. Under the new standard, the rationale as to the silence no longer matters if Rowell can show prejudice and that the defense attorney would have either moved for cause or to strike the juror with the use of peremptory.

Juror 164's Potential Bias

Taking the jurors out of the equation, what if Juror 164 intentionally failed to disclose their arrest to the court? Why would they do so? One thought is to not draw attention to the fact they may have the same judge preside over their case at a later time. However, there was no evidentiary hearing before the appeal came before the Supreme Court and thus no clarity as to why Juror 164 did not reveal the arrest. This is the crux of the problem with traditional methods of voir dire allowing only the court to question jurors. No one is able to truly know what a juror thinks and without an opportunity for further questioning, attorneys on either side are left to guess and make assumptions about prospective jurors.

So, why would a defense attorney consider striking Juror 164 from the jury? Quite simply because of the juror's relationship with the state. Rowell's defense counsel argued that, if Juror 164's recent arrest had been made known, the juror would not have been seated because of the juror's potential bias.^[27] It was quite plausible that Juror 164 may have wanted to curry favor with the government to help their own case by convicting Rowell.^[28] In fact, the same assistant solicitor prosecuting Rowell's case had also been assigned to Juror 164's case.^[29]

Parallels can be drawn in other cases. In Shoop v. Cunningham, the defendant who was convicted of multiple counts of murder, sought and was granted an evidentiary hearing after he alleged that the foreperson was familiar with him from her work in the community and did not disclose this fact to the court.^[30] In a 2000 United States Supreme Court case, Williams v. Taylor, the defendant was granted an evidentiary hearing where a juror failed to disclose that they had been married to a state witness and that the prosecutor had also represented the juror in the divorce proceeding.^[31] More close to home, the defendant in State v. Galbreath challenged the relationship between another juror and the family of a victim and witness in the case.^[32] However, because Galbreath pre-dates the new standard articulated in Rowell, the defendant was not granted a new trial.

A Little Too Late

The Rowell decision conies nearly 10 years after the deadly accident that led to the defendant's convictions. At the conclusion of the Court's opinion, Justice Hill wrote that an evidentiary hearing was warranted but recognized "the practical difficulty of revisiting [the] issue after such a long passage of time.''^[33] It was unclear if Juror 164 would even be available to testify at an evidentiary hearing now that Supreme Court was allowing one. Thus, Rowell's victory may have been a Pyrrhic one.

The defendant in Cunningham waited nearly two decades before the Sixth Circuit allowed his evidentiary hearing to proceed. Nonetheless, the court addressed the importance of a hearing. A hearing permits counsel to probe the juror's memory, his reasons for acting as he did, and his understanding of the consequences of his actions. A hearing

also permits the trial judge to observe the juror's demeanor under cross-examination and to evaluate his answers in light of the particular circumstances of the case.^[34]

An evidentiary hearing does all the things attorney conducted voir dire does, but for some defendants, the more exacting inquiry of the juror may come a little too late.

The Takeaway

Attorney conducted voir dire is not perfect. And there is no such thing as a perfect trial.^[35] Litigators in both civil and criminal trials want prospective jurors who will speak the truth. Attorney conducted voir dire is a mechanism for allowing jurors to provide information about their attitudes, opinions, experiences, personal backgrounds, and any prior knowledge of the case. While the practice may result in a more protracted juiy selection process, the benefits far outweigh any critique. Conducting an extensive and fulsome voir dire process in the beginning of a trial will undoubtedly save both time and resources on the back end. The Rowell decision illustrates that, while defendants in this state may now have a better chance of investigating juror misconduct and bias post-trial, it still does not fully eliminate the unfairness and impartial nature of their trial when there are "foxes" improperly seated on the jury.''?

Melanie C. Regis is a native Charlestonian and an assistant pro-fessor at the Charleston R School of La w. She teaches both civil and criminal procedure and most recently taught a course on attorney conducted voir dire. Prior to working in academia, Regis was a public defender for the Commonwealth of Massachusetts.

Endnotes

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Notes:

^[1] Mark Breakstone &David White, Lawyers Must Work to Improve Voir Dire System in Massachusetts, 17 Mass. Lawyers J. 3,3 (2010).

^[2] Rule 47, SCRCP.

^[3] ¦¦Notwithstanding the provisions of Section 14-7-1020, in cases involving capital punishment a person called as a juror must be examined by the attorney for the defense." S.C. Code Ann. §16-3-20 (D).

^[4] 444 S.C. 109, 906 S.E.2d554 (2024).

^[5] Rowell, 444 S.C. 109, 906 S.E.2d 554.

^[6] Rowell, at 115-116, 906 S.E.2d at 557.

^[7] Local Civil Rules for the United States District of South Carolina indicate that "[t]he court shall conduct the examination of prospective jurors." However, the submission of voir dire questions by counsel is allowed prior to trial. Local Civ. Rule 47.04 (D.S.C.)

^[8] Order of the Supreme Court of New Jersey, available at https://www.njcourts.gov/sites/clefault/files/courts/supreme/part4of4-orderau-thorizingacvdpilotprogram-07-12-22.pdf

^[9] Rowell, 436 S.C. 54, 58, 870 S.E.2d 175,177.

^[10] Because Rowell's were non-capital even though one of the victims died.

^[11] Rowell, 444 S.C. at 112, 906 S.E.2d at 555.

^[12] Id.

^[13] Rowell, at 112, 906 S.E.2d at 555.

^[14] Rowell, at 113, 906 S.E.2d at 556.

^[15] "The trial court stated that on its face, the question asked during voir dire was comprehensible to the average juror; however, the court noted that it was the first of ten questions the juror had to remember and the amount of time between question and answer could be confusing to the average juror."' State v. Rowell. 436 S.C. 54, 62 870 S.E.2d 175, 179 (2020).

^[16] State v. Rowell, 2022 S.C. App. LEXIS 68 at *8.

^[17] Rowell, 436 S.C. at 67, 870 S.E.2d at 182.

^[18] 345 S.C. 583, 550 S.E.2C1 282 (2001).

^[19] State v. Rowell, 2022 S.C. App. LEXIS 68, *17-18 (2022).

^[20] Rowell, at 115, 906 S.E.2d at 557

^[21] Brian J. McKeen & Phillip B. Toutant, The Close for Attorney-Conducted Voir Dire, 90 Mich. Bar Journal 30-33, (2011)

^[22] Voir Dire Practices in U.S. Courts: State-of-the States Survey of Jury Improvement Efforts. Report available at https://nationalcenter-forstatecourts.app.box.com/s/jofvqkpiufix-viar7ofwevahgoiz3kox, Page 9.

^[23] Stephen R. Bough and Kaitlin Minkler, Asking All the Plight Questions, 109 Judicature 40, 46 (2025) citing Susan E. Jones, Judge- Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor. 11 L. &Hum. Behav. 131, 144 (1987).

^[24] Voir Dire Practices in U.S. Courts: State-of-the States Survey of Jury Improvement Efforts .Report available at https://nationalcenter-forstatecourts.app.box.comsjofvqkpiufix-viar7ofwevahgoiz3kox, Page 9.

^[25] Chapter 254 of the Acts of 2014.

^[26] Mass. Super. R. 6. (3)(e).

^[27] Rowell, 444 S.C. at 113, 906 S.E.2d at 555-556.

^[28] Id.

^[29] Id.

^[30] Cunningham v. Shoop, 2019 US. Dist. LEXIS 218220 (N.D. Ohio Dec. 18, 2019). rev'd 23 F.4th 636 (6th Cir. 2022). cert, denied. 143 S. Gt. 37 (2022).

^[31] 529 U.S. 362 (2000).

^[32] 359 S.C. 398, 597 S.E.2d 845 (2004).

^[33] Rowell, 444 S.C. at 117, 906 S.E.2d at 557.

^[34] Tanner v. United States, 483 U.S. 107, 135 (1987) (Marshall, J., concurring).

^[35] McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984).

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