Views from the Bench

• Publication year: 1992
• Pages: 28
• Citation: Vol. 5 No. 5 Pg. 28

Views from the Bench Vol. 5 No. 5 Pg. 28 Utah Bar Journal May, 1992

The Modern Voir Dire Process

Tyrone E. Medley Third Circuit Court Judge

Whenever I read legal opinions from our Appellate Courts, I am always reminded of a humorous incident which occurred within the first three months of my appointment to the Circuit Court bench in 1984.I attended the annual statewide judicial conference and a Utah Supreme Court colloquium was a part of the program. The purpose of the colloquium was for the Justices to discuss with trial judges the significant opinions of the past year. During the comment period, an experienced trial judge began cross examining the Justices about a case of his, which had apparently been reversed. After the justices gave their response, the experienced trial judge in a style uniquely his own replied "I just want you to know you are not right because you are right, you are right because you are last". All of us broke into laughter, it was a light moment, I guess that's the perspective of a trial judge. However, no matter what your perspective, when appellate courts speak it's time to listen.

The appellate courts in Utah have spoken and have established a new era of modernizing and expanding the voir dire process. The jury selection process may be the most critical aspect of a jury trial in a criminal or civil case. Experienced practitioners believe a case can be won or lost on one's ability and opportunity to select a fair, and impartial jury. Voir dire, a process of jury selection, where the Judge or attorneys subject prospective jurors to questions designed to elicit information about their experiences, attitudes, biases and prejudices, plays an essential role in guaranteeing the litigants a right to a fair trial. Voir dire has two distinct and equally important purposes: the first is to detect actual juror bias which may give rise to a challenge for cause. The second purpose is to allow parties an opportunity to obtain sufficient information to intelligently exercise peremptory challenges.^[1]

Appellate Courts are concerned that trial judges are not allowing lawyers an adequate opportunity to elicit sufficient information from prospective jurors to detect actual bias, or to collect sufficient data to intelligently exercise peremptory challenges. The proposition has been raised that trial judges, in too many cases, conduct voir dire in a superficial and perfunctory manner in an effort to get a jury seated quickly so we can get on to the evidence, the instructions, and the verdict.^[2] When this occurs, the litigants are usually left with a cursory group examination, superficial in nature, with limited opportunities to explore hidden biases and prejudices and with even less information to intelligently exercise peremptory challenges. The rule has been clearly established that the trial judge should liberally allow questions designed to discover attitudes and biases, both conscious and subconscious in order to accomplish two objectives: (1) whether the prospective jurors can impartially decide the issues based on the law and the evidence presented at trial and (2) the collection of sufficient data to intelligently exercise peremptory challenges.^[3] To this end, justice is served.

CHALLENGES FOR CAUSE

The challenge for cause usually eliminates prospective jurors clearly unable to decide the issues in a fair and impartial manner based on the evidence and law presented at trial. Utah Rule of Criminal Procedure 18(e) embodies the grounds upon which a juror may be challenged for cause in a criminal case. The rule states:

(e) The challenge for cause is an objection to a particular juror and may be taken on one or more of the following grounds:

(1) want of any of the qualifications prescribed by law;

(2) any mental or physical infirmity which renders one incapable of performing the duties of a juror;

(3) consanguinity or affinity within the fourth degree to the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted;

(4) the existence of any social, legal, business, fiduciary or other relationship between the prospective...