Voir Dire - A Neglected Tool of Advocacy

• Author: By Major Ronald M. Holdaway
• Pages: 01

The author analyzes and compares the WE of voir diye eiamimtion in civilian. cowts againat such examhntion in the military courts-martial. He ddcusses those area8 of ezamination which tend to espose matters such ag bias

OT interest, the eetent to which voir dire may be used to develop a theory of defense on the OLLSB, end the degree of control whioh may be esercised over the voir dire byfudges and law obcers. He concludes by offering vw-tical mggestiona for conducting a successful vow dire e%-aminatim

1. INTRODUCTION

   Voir dire examination of juror, is considered by many leading trial lawyers to be an extremeiy valuable tool of advocacy quite apart from its connection vith the challenging process.' In civilian jurisdictions it is not uncommon for the examination of prospective jurors to take several houra or even several days as lawyers skillfully use it not only to develop possible challenges, but also as sounding boards for their theory of the case. On the other hand, use of voir dire in courts-martial is relatively neglected. This LS not to say that voir dire is nonexistent in military courts: it probably ia used and used effectively. Yet per. sonal experience of the writer, his discussion with other military counsel and law officers, and a study of the relatively few cases reaching appellate level compel the conclusion that by and large, there is either no voir dire or, if an examination is conducted, it tends to be very perfunctory in nature. Therefore, the goal of

   "This article w88 adapted from a thesis presented to The Judge Advocate General's School L? S. Army, Charlottesriile. Virginia while the author was B member bf the Flfteenth Advanced Course. Thpi opinions and con. eiuiiom presented herem 81% those of the author and do not necasarily represent the ~iewe of Tho Judge Advocate Genersl'8 Schoai or any other govemmentsl agency.

   **JAW, U. S. Army; Military dustlee Division, The Judge Advocate Generai'a School, B.A. 1857 LL.B. 1858 University af Wyoming. admltted to practice befa;* the'hara'of th; Stad of Wyoming. the U. S.' Supreme Court, and the U. S. Court of Military Appeals.

   'Sea, w., I. M. BELLI, MODERX TRIALS

   786 (1854).

   *LO 80588 1

   this article is to develop the law of voir dire, its purposes and limitations, and the thesis that examination of prospective court members can and should be an effective tool of military adrocaey provided it is carefully prepared and executed. Finally, an attempt will be made to state some practical and useful suggestions as to how to prepare and conduct voir dire examination.

   11. PURPOSES OF VOIR DIRE EXAMIKATION

   The origin of xwir dire examination of prospective jurors is rather obscure. No doubt it dereloped as a natural concomitant of the right to an impartial jury,? The major purpose of examin-ing the jury was then and remains now, at least ostensibly, to discover possible challenges against prospective jurors. Dis-cussed below, however, are three purposes for conducting voir dire examination.

   1. DISCLOSISG DISQCALIFICATIO.1' OR ACTI'AL BIAS

      All jurisdictions in the United States allow inquiry to disclo~e disqualification or actual bias.3

   2. AID IS EXERCISIXG PEREMPTORY CHALLE.YGE.9 Voir dire wa8 considerably expanded by the inclusion of peremptory challenges. Mast jurisdictions, though not all: will allow examination which will reasonably aid in a more intelligent exercise of peremptory challenges. Since such a challenge is often exercised on the basis of a juror's personal background and beliefs. the scope of inquiry is naturally rather broad.b

   3. A TACTICAL DEVICE TO ISDOCTRIXATE THE JCRY

      This use of voir dire will be the main focus of this article. By indoctrination is meant that the question itself is designed to har7e an influence on the juror and his answer thereto is only incidental or of little sipnificance. Such a question may be little more than an attempt to create rapport with the juror (or in

      See 4 R BUCXETOXE COIMEITARIES 362-55 113th ed. 1800)'See, o.o., State Y. Higgs. 143 Conn. 138. 120 A.2d 162 11956) ; People \

      Car Soy. 57 Cal. 102 (1880). Sor d80, Morfard Y. United States, 339 C.S. 258 (1949). wherein the Supreme Court held that the constitutional right La a jury trial was infringed when defense counsel was precluded from interrogation 8.8 to actual biaa

      'See, eo., People Y. Raney, 55 Cai.2d 236, 359 P2d 23 (1961); YcCee 1,.State, 219 I d

      53, 146 A.2d 194 (1959).'See, e.& Lightfeet V. Commonwealth, 310 Xy. 151, 219 S N.2d 984 (1949)Sarrentlno V. State, 214 Ark. IlE, 214 S W.2d 511 (1946).

      2 *GO 89XB

      VOIR DIRE

      courts-martial, the court member-the terms are interchangeable for purpaaes of this article). However, more often the purpose of the question will be to advise, in an interrogatory form, the juror of certain rules of law, defenses, or facts expected to arise in the case in such a way as to ally the juror with the counsel's side or theory of the case. For example, the following question does not really anticipate a negative response: "Do you agree with the rule of law that requires acquittal in the event there is reasonable doubt?" The rule of reasonable doubt is one of the fundamental principles of our criminal law and is known as such by most of our citizens: therefore, even in the instance where a court member did not particularly agree with the rule, he would hardly acknowledge so in open court. The real reasonfor such a question is, in a sense, to put the member on notice right from the start that there might be reasonable doubt in the case and to get him mentally familiar with the rule in the hope that he will look for reasonable doubt in the case and vote to acquit. It makes it more likely, furthermore, that in the decision-making process the member will be more aware than he otherm6se would have been of the principle of reasonable doubt: he will have committed himself to belieying it, and perhaps by emphasizing it at the voir dire and, of course, during summation, the rule will be enlarged in his mind. Therefore, particularly in cases where the facts are close or the defense technical, skillful examination of the jurors or court members may well prove important in the eventual outcome of the case.

      Having pointed out this third use of voir dire and having noted that the focus of this article is its use as a means of advocacy, a note of caution is appropriate. Voir dire is part of the challenging procedure; therefore, its only legitimate use is a8

      part of that challenging procedure.O That it may be useful for indoctrination purposes does not change the requirement that It ostensibly relate to possible challenges-either peremptory or for cause. Thus nhile the farthest thing from counsel's mind might be a potential challenge, he is still obliged to frame the question so that it appears relevant to B possible challenge. This must be understood as it celom the whole spectrum of the law of voir dire. Many of the problems concerning permiasible scape of examination, as will be seen, arise from a failure of counsel Properly to phrase their questions so that the responses thereto

      'Sea, e.& Kephart V. State, 93 Okls. Crim. 451, 229 P.2d 224 (1961):State Y. Bauer, 189 Minn. 280, 218 N.W. 40 (1933): State V. Kosgland. 39Idaha 405, 228 P. 314 (1924)

      A00 Be5ss 3

      appear to relate to a challenge. For example, it is fairly common to preface a question concerning a rule of law 8.9 to whether the juror understands the rule. Such a question will generally be held improper.i Whether the juror understands the law does not go to his qualifications or existence of prejudice (absent a re-sponse indicating a mentai On the other hand, what a juror's attitude is toward the law might weil go to his ability to he impartial and hence his qualification to hear the case.' Therefore, a alight change in phrasing, rhowing an understanding of the form voir dire examination must take, may be the difference between a proper and an improper examination.

      111. THE LAW OF VOIR DIRE IN CIVILIAS JURISDICTIONS

      The emphasis of this article is the use of voir dire in military courts-martial. Yet, a8 in many other phases af cowts-martial procedure and practice, the civilian law forms the basis for the military law. An understanding of the general principles applicable in federal and State jurisdictions will not only enable the military coumel better to understand the law of voir dire, but will be very instructive in formulating more effective %zap of conducting voir dire examination in military courts.

      There are two main problems that arise in civilian practice. The first problem pertains ta who should properly conduct the examination: the second and most wxatious pertains to the proper scope of the examination.

   1. WHO CONDCCTS VOIR DIRE EXAWINAT106'

      There is no unanimity as to vhether the trial judge or counsel should conduct the voir dire examination. Some states have held that counsel has no absolute right to ask questions of the jurors:'" while others, conceding the jiidge to be chiefly responsi-ble for examinations, have found error in completely pre-empting counsel from supplementary Most jurisdictions, however, contemplate an examination participated in by both

      -See, e.#., People Y. Harringtan, 138 Cal. App.2d 802. 291 P Id 581 (1855)

      3 M' S i n People Y. Wein, 60 Cal.2d 383, 826 P 2d 467 11958); State Y . Plumlee,

      ' See, '.I., Bryant V. State, 207 3rd. 665, 115 A.2d 602 (1856) : Cammon- -'See, B.S. Blavnt s. State, 214 Ga. 438, 105 Sa2d 304 (1858); State Y

      177 La. 687, 149 Sa 425 (1933).

      wealth V. Taylor, 821 Dlasi. 641, 100 S.E.2d 22 11851)

      Guidry, 160 La. 665, 107 Sa. 418 (1826).

      VOIR DIRE

      court and counsel. Even where the judge has chief responsibility, he is often under some obligation to allow supplementary examination by counsel.12 The litigation has arisen as to how far the judge could go in cutting off inquiry and whether the actions of the judge were prejudicial under the ~ircumstances.'~

      If there

      ia such a thing in this area as a modern trend, it...