Voir Dire, Volume 1, Number 2, Summer 1995, pp. 38, 39

ATTORNEY—CONDUCTED VOIR DIRE
JURY VOIR DIRE – WHO SHOULD ASK THE QUESTIONS?
by Judge Pat B. Brian

Questions continue to arise with the Bar and Bench regarding the jury selection process.   The debate is whether the judge should ask jurors questions regarding their “suitability” to serve, whether that task should be performed by trial counsel, or whether questioning the jurors should be the combined function for the judge and the attorneys.

The basic purpose of jury voir dire is to expose any “insurmountable” bias or prejudice harbored by members of the jury pool and excuse for “cause” jurors who will not listen attentively to the evidence, apply the law, and decide the case fairly and impartially. The jury selection process also must provide counsel an informed basis on which to exercise their peremptory challenges.  In the final analysis, the object of jury voir dire is to “swear” a fair and impartial jury.  No more.  No less.

In Utah, jury voir dire is conducted primarily by the judge. The federal courts have used this practice for many years.  There does not appear to be any significant trend, either in the state or federal system, to alter this procedure.

For many years I served as a state prosecutor in California. During those years for trial lawyers had the right, in civil and criminal cases, to question the jury.  The process was tedious, time consuming, and expensive. It was not uncommon to spend ten to fifteen trial days selecting a jury in a murder case.  Also, it consistently took thirty to thirty-five percent of the total trial time to select a jury in routine kidnap, robbery, rape, burglary, theft, and assault cases.

I recall in several “big” cases, defense counsel hiring a “platoon” of psychiatrists, psychologists, astrologists, hypnotists, palm-readers, fortune-tellers, and soothsayers to assist the defense team in selecting a jury.  For several days during the jury selection process, I watched with some amusement and amazement the interaction between defense counsel and their “advisors.”  During each court recess, lawyers and advisors hastily formed their “hallway huddle.”  Then they boisterously debated, speculated and hypothecated what it meant when prospective jurors smiled, frowned, crossed their legs, scratched their noses, slumped in their chairs, sat erect in their chairs, wore pink shirts, chewed gum, looked at their watches, carried day-planners, wore eye shadow, talked to the bailiff, had unshined shoes, read the Los Angeles Times, parted their hair, had no hair, etc., etc., etc.  Finally, a jury would be selected and the case would proceed. I doubt that the enormous expenditure of time and money made any appreciable difference in the caliber and quality of the jurors ultimately selected to serve.  Interestingly, these same procedures, in varying degrees, are alive and well in may courtrooms today.  This process seemed questionable twenty-five years ago.  It seems questionable today. 

Contract the above-described scene with a felony theft case over which I recently presided.  The case was called at 9:00 p.m., Thursday morning. Thirty prospective jurors had assembled to serve.  Prior to trial, both lawyers submitted written questions to be asked the jurors.  After the court completed an initial and thorough examination of the jurors, counsel and the court conferred several times at the bench to discuss further questioning of the jurors. Although the court asked all the questions to the prospective jurors, both counsel took a very active role in the jury selection process.  Several jurors were excused for “cause.” Finally, counsel passed the remaining jurors for “cause,” exercised their peremptory challenges, and a jury was sworn.  Jury selection was eminently fair to both parties.  The playing field was “level” as it related to the jury.  A fair and impartial jury had been selected.  This entire process took loess than two hours. The case was submitted to the jury approximately then trial hours later.

This case is not unusual in the state district courts, in both civil and criminal matters. Arguably, these jury selection procedures have some meaningful relationship to the fact that Utah has one of the lowest backlogs of cases in the United States.  Admittedly, the more complex the case, the more time it will take to select a jury.  Nevertheless, there must always be a consistent, responsible, and balanced relationship between the time devoted to selecting the jury and the time spent in “trying the case.”

The general public is undeniably becoming more critical and vocal in expressing what it perceives as the failures of the legal system.  This criticism is being laid in the laps of both the Bench and the Bar. Litigation is seen as too spurious, too costly, and too time consuming.  Our legal systems is perceived as being ‘totally out of control.”

Jury selection must be thorough, fair, expedient, unintrusive, and result in litigants having their disputes resolved affordably, fairly, timely, and impartially.  Judges and lawyers must not become distracted to unfocused regarding their respective responsibilities. Our combined objective must always be to establish and implement procedures calculated to select a jury that is fair, impartial, and appropriately screened to do its job, and accomplish this task in the most efficient manner possible.  Court-conducted jury voir dire best accomplishes that objective.

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