Attorney Voir Dire and Jury Questionnaire: Time for a Change
| Publication year | 1997 |
| Pages | 13 |
Robert B. Sykes and Francis J. Carney.
We were stunned by Judge Stephen Henriod's ruling at the pretrial on January 21, 1997.[1] The attorneys - not the judge - would be handling voir dire! Talk about butterflies. Also, jurors would be filling out a substantial questionnaire and asking questions of the witnesses.
Plaintiff's counsel went to that pretrial anticipating stiff opposition to plaintiff's proposed jury questionnaire ("unduly time-consuming"), and that the request for attorney voir dire would be summarily rejected, as it had been so many other times in the past by both federal and state judges.[2] The ruling on the questionnaire was surprising, though not totally unknown in Utah since one-third to one-half of judges will give some form of a jury questionnaire, especially if agreed to by counsel, as it was in this case. Counsel were very pleased with the questionnaire ruling because juror biases may be more evident when a person must write out an answer. However, the ruling allowing attorney-conducted voir dire was totally unexpected and offered the first real chance in counsels' careers to thoroughly explore potential bias.
Additionally, Judge Henriod indicated that he would be following what is commonly known as the "Arizona Rule" with respect to juror questions. He would not only allow them to take notes, but he would actually encourage them to ask questions at the conclusion of every witness's testimony. The juror would write the question out and pass it to the judge, who would then determine with counsel whether or not the question would actually be posed.
Plaintiff's counsel asks for attorney-conducted voir dire in every case; it has never heretofore been granted by any state or federal judge in Utah.[3] Occasionally, a judge will allow a few rudimentary "follow up" questions to a juror. We have heard that a few judges in the Second District in Ogden and in the First District in Logan in the past have allowed varying degrees of attorneys voir dire. We understand it is a little more common in serious criminal cases. A small minority of other state court judges are fairly liberal in asking jury questions submitted by counsel, but few will seriously probe the answers. We are not otherwise aware of any widespread or common use of attorney-conducted voir dire in Utah.
JURY SELECTION IN UTAH
The right to trial by jury is preserved in the Utah Constitution and the Utah Rules of Civil Procedure. Utah Constitution, Article I, Section 10; Rule 38(a) U.R.C.P. Of course, the reality of that right is determined by the quality of the jury. The quality of the jury is determined in large part by whether or not fair-minded, "unbiased" women and men can be selected. The process of determining who the jury will be can only be done through questioning prospective jurors. How else is one to know if a juror has a bias for or against one party unless questions are asked to determine this? But, can you really effectively question a juror without some probing?
In Utah, that question process, or voir dire, is governed by Rule 47, Utah Rules of Civil Procedure, which provides:
The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as is material and proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as is material and proper.
Rule 47(a). A party may challenge a juror for cause on the ground:
That a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging; but no person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public rumor, statements in public journal or common notoriety, if it satisfactorily appears to the court that the juror can and will, notwithstanding such opinion, act impartially and fairly upon the matter to be submitted to him.
Rule 47(f)(6) (emphasis added). The Rule further provides that any challenge shall be "tried by the court," and the challenged juror "may be examined as a witness in the trial of such challenge." (emphasis added)
The manner and mode of questioning, in both civil and criminal cases, and the failure of the court to ask certain voir dire questions, is not infrequently litigated on appeal. For example, in the Gary Bishop case, a strong challenge was raised on appeal that voir dire was improperly limited:
Defendant finally contends that the court erred by asking during general voir dire certain questions proposed for individual voir dire, by refusing to ask other probative questions, and by asking leading questions.
State v. Bishop, 753 P.2d 339, 351 (Utah 1988).
It has long been held that the trial judge has considerable discretion in Utah as to the manner and form in which voir dire examination is to be conducted. Utah State Road Comm. v. Marriott, 21 Utah P.2d, 238, 444 P.2d 57 (1968). However, that discretion has limits. It was reversible error in a medical malpractice case for the court not to strike a juror for bias, forcing the plaintiff to use a preemptory challenge, where the juror testified that she would give more weight to the defendant doctor's testimony because of his status as a doctor. Jenkins v. Parrish, 627 P.2d 533 (Utah 1981). The trial court's discretion may be abused, depending upon the totality of the questioning. Ostler v....
To continue reading
Request your trial