Outline of Civil Jury Selection

 Outline of Civil Jury Selection in Utah

Francis J. Carney
Anderson & Karrenberg
(Revised January 2000)

SOME VOCABULARY

  • Array/Venire/Jury Panel: synonyms meaning the jury panel from which the jury is chosen. Venire derives from the French infinitive “to come;” that is, to come to court. (Pronounced as anglicized to “vah- nye-ree, not like the French "vu-neer")
  • Peremptory: A challenge made to a panelist without needing to give any cause. From the Latin peremptorious, meaning taking away forever. (Per-emptory, not pre-emptory. Remember Colonel “Bat” Guano in Dr. Strangelove: "Per-verts", not "pre-verts.")
  • Petit Jury: A trial jury, as opposed to a grand jury. From the French for little or small, petit. (Pronounced as anglicized to “pet-it”, not as in French, “pe-teet.”)
  • Voir dire: The process of questioning the jury panel to arrive at a petit jury. From the French infinitives “to see” and “to tell.” Pronounced "vwah-deer,” as in Bambi. An acceptable variant in Utah is “dye-er.”
  • Venireman: A member of the venire or a potential jury member. Veniremen have now become veniremembers and as such the term should be avoided: panelist is easier and technically correct; plain old juror is most commonly used.
  • Talesman: A courthouse hanger-on dragooned into jury service even though not formally part of the venire when the number of panelists turns out to be too few. Remember Otis in Andy of Mayberry? Someone like him. (Pronounced “ tay-les-man” and not to be confused with “talisman.”)

RIGHT TO JURY TRIAL

  • Seventh Amendment, U.S. Constitution provides for a jury trial in all suits at common law where the value in controversy exceeds twenty dollars.
  • Sixth Amendment, U.S. Constitution provides for a jury trial in all criminal actions.
  • Article I, Section 10, Utah Constitution provides for a jury trial in all capital cases. It implies a constitutional right to juries in civil cases.

WAIVER OF RIGHT TO JURY TRIAL

  • Rule 38(b) of both the Federal and the Utah civil rules requires a jury demand be made within ten days after the service of the last pleading directed to an issue upon which there is a right to a jury. Failure to do so is a waiver under Rule 38(d).

QUALIFICATIONS OF JURORS

  • Federal: 28 U.S.C. §1861 provides that all citizens age 21 or older who have resided in the judicial district for at least one year are competent to serve unless they are convicted felons, are unable to speak, read, and understand English, or are incapable by reason of mental or physical infirmities to render efficient jury service.
  • State: §78-46-7 provides that all citizens age 18 or older who are residents of the county and are able to read, speak, and understand English and who are not convicted felons may be jurors.

EXEMPTIONS/EXCLUSIONS FROM JURY SERVICE

  • Federal: 28 U.S.C. §1862 provides that armed forces personnel, police officers, firefighters, and elected officials are “exempt” from jury service. §1863 provides that a district judge may “excuse” any person from jury duty for good cause, or for hardship, inconvenience, etc. §1869 allows a challenge to any petit juror who has served as such within the previous year.
  • State: §78-46-15 allows an “excuse” from jury service upon a finding of hardship, physical or mental disability, extreme inconvenience, or public necessity. No person shall be required to attend court for more than ten court days as a jury panelist or to serve as a trial juror more than once in two years under §78-46-19. Rule 4-404, Utah Code of Judicial Administration, allows the jury clerk to make preliminary determinations on qualifications and hardships.

PROCEDURES FOR CONSTITUTING THE PANEL

  • Federal procedures are found at 28 U.S.C. §§1861 to 1869, the “Jury Selection and Service Act of 1968" and DUCivR 471. See, generally, C. Wright and A. Miller, 9A Federal Practice and Procedure: Civil 2d §§2481-86 (1995).
  • State procedures are found at §§78-46-10 and 12 and also in Rule 4-404, Utah Code of Judicial Administration.

NUMBER OF JURORS

  • Neither the Seventh nor the Sixth Amendments specify the size of the jury in federal cases.
  • The common law rule was that a trial jury consisted of twelve jurors but there is no constitutional right to that number. Williams v. Florida, 399 U.S. 78 (1970) and Colgrove v. Battin, 413 U.S. 149 (1973).
  • Federal Rule 48: not fewer than six nor more than twelve jurors. Court may excuse jurors under Rule 47(c) for good cause without causing a mistrial.
  • DUCivR 48-1 provides for twelve jurors in all civil cases, with not more than two jurors excused during trial or deliberation, leaving a minimum jury size of ten.
  • Article I, Section 10 of the Utah Constitution provides that the number of jurors in civil cases shall be set by statute but may not be less than four persons.
  • §78-46-5 provides for eight jurors in civil cases except that the jury is only four persons in cases for damages of less than $20,000, exclusive of costs, interest, and attorney fees. There is no jury in small claims matters. Parties may stipulate to fewer jurors- no minimum set by statute. Unlike in federal court, a mistrial results if a juror has to be excused and no alternates were chosen, unless the parties stipulate otherwise.

JURORS NEEDED FOR VERDICT

  • Federal Rule 48 and DUCivR 48-1 require a unanimous verdict in all cases.
  • The Supreme Court has not ruled on the constitutionality of a non-unanimous verdict in a federal civil case under the Seventh Amendment and the lower courts are in disarray on the issue. See, C. Wright and A. Miller, 9A Federal Practice and Procedure: Civil 2d at §2492 (1995).
  • Utah Rule 47 and §78-46-5(3) requires not less than least three-fourths of the jurors (6 out of 8) to reach a civil  verdict. Unanimity is, of course, a requirement in criminal cases under Article I. Section 10 of the Utah Constitution.

ALTERNATE JURORS

  • The 1991 amendments to Federal Rule 47 abolished alternate jurors in federal civil trials.
  • Utah Rule 47(b) provides for one or two alternates at the court's discretion. They are discharged when the jury retires to consider its verdict if they are not needed.
  • Some state judges will ask the attorneys to stipulate to allowing the alternate juror to participate in the verdict, rather than being discharged at the end of the trial without participating in the deliberations. If this is done, an agreement must first be reached on whether 6 out of 9 or 7 out of  9 votes will be needed for a verdict- as one might imagine, this is rarely something that counsel will agree upon.

VOIR DIRE PROCEDURES

  • Both Utah and Federal Rule 47 state that the court may permit the parties or their attorneys to conduct the voir dire or may itself conduct the examination. If the court conducts the examination itself, the Rules provide that supplemental questions shall be allowed, but the court determines whether it or the attorneys ask the supplemental questions.
  • DUCivR 471(c) provides that the Court will conduct the voir dire and “will permit suggestions from counsel for further examination.” Requests for additional voir dire must be submitted at least two business days before trial under DUCivR 471(b).
  • The judge conducts the voir dire in all federal and in most state courts in Utah.
  • There are variations among the state courts in how much attorney-conducted voir dire is allowed. Many judges allow none at all. Others allow full attorney voir dire, within limitations. The First District judges apparently allow full attorney-conducted voir dire. Some of the Second District judges allow attorney-conducted supplemental questioning.  Nearly all judges will permit attorney questioning of individual jurors during in-chambers conferences.
  • Barrett v. Peterson, 868 P.2d 96 (Utah Ct. App. 1993): Attorney-conducted voir dire is discretionary under Rule 47 and voir dire in Utah is "customarily" conducted by the court. “In the end, it is which questions are asked that matters-- not who asks them.” 868 P.2d at 102, n.6.
  • Beware of  “tainting” of the panel by open-court comments by potential jurors in response to voir dire questions. This requires a bit of experience and a close grip on the panel by the trial judge and by the attorney, if attorney voir dire is allowed.
  • State v. Saunders, 371 U.A.R. 6 (Utah 1999): A recent and thorough critique by the Supreme Court of the superficial questioning by judges in Utah that often passes as "voir dire." This case held that a trial judge abused his discretion in refusing to allow probing of potential jurors' attitudes toward child sexual abuse, given their admission of prior specialized knowledge on the subject:
  • "Effective voir dire questioning of prospective jurors must not be prevented by a procedure designed to qualify jurors as quickly as possible on the basis of superficial questions and a declaration by each juror that he or she can follow the judge's instructions and decide the case fairly."
  • "Ruling that a prospective juror is qualified to sit simply because he says he will be fair ignores the common-sense psychological and legal reality of the situation. It is not uncommon for people to believe that their 'biases' are in fact nonbiased objective judgments that are true and correct."
  • "We now make emphatically clear that a juror's statement alone that he or she can decide a case fairly pursuant to the law given by the trial court is not a sufficient basis for qualifying a juror to sit when the prospective juror's answers provide evidence of possible bias and the trial court does not allow further questions designed to probe the extent and the depth of the bias. Preventing such further inquiry and concluding the issue by taking a juror's conclusory statement that he or she will not be affected by a particular attitude or will decide the case fairly is not sufficient."
  • "As a general rule, trial judges have some discretion in limiting voir dire inquiry. See, e.g., Worthen, 765 P.2d at 845. That discretion is most broad when it is exercised with respect to questions that have no apparent link to any potential bias. However, the trial judge's discretion narrows to the extent that questions do have some possible link to possible bias, and when proposed voir dire questions go directly to the existence of an actual bias, that discretion disappears. The trial court must allow such inquiries."

CHALLENGES TO THE PANEL

  • 28 U.S.C. §1867 sets forth the federal procedures. Objections to the array must be made before voir dire begins or within seven days after the party could have discovered the irregularities. Federal Rule 47 is silent on panel challenges but see, Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) in which the Supreme Court struck down the exclusion of wage earners from all jury panels.
  • Utah Rule 47(d) provides for challenges to the panel on the grounds of a material departure from the prescribed procedures in selecting the panel, or an intentional omission of the proper officer to summon a juror drawn. Challenge must be made before a juror is sworn. See also, §78-46-16.

CHALLENGES FOR CAUSE

  • 28 U.S.C.§1870 says that challenges for cause (or “favor”) shall be decided by the court. The grounds for cause challenges are not set forth either in the Judicial Code or in the Rules. As a matter of decisional law, the trial court is required to determine whether the potential juror is impartial in the constitutional sense. Hopkins v. County of Laramie, 730 F.2d 603 (10th Cir. 1984) and Geagan v. Gavin, 292 F.2d 244 (1st Cir. 1961).
  • State Rule 47(f) prescribes the grounds for cause challenge in civil actions:

      • - Lack of legal qualifications to be a juror

      - Relative of party

      - Debtor/Creditor, Employer/Employee, other business relationships

      - Having been a juror or witness in previous trial of same action

      - Pecuniary interest in the action

      - Having a state of mind which prevents juror from acting impartially

  • The procedures for trial of cause challenges vary from court to court. Rarely, cause challenges are heard in open court and in front of the entire panel although you may become acquainted with that abominable practice if you ever try a case in Idaho. More commonly, cause challenges are heard at the bench or in chambers. Counsel must take care to ensure that  a record of cause challenges is made in order to preserve point for appeal. In other words, make sure the court reporter takes down the challenge and the ruling then or at a later convenient time.
  • “Semi-cause” strikes are made when a potential juror doesn't strictly meet the elements for a cause challenge under Rule 47(f) but other reasons exist for striking him without forcing counsel to use a peremptory on them. For example, a panelist who knows one of the attorneys or one of the parties but doesn't think it will influence his decision. Or a panelist who appears exceedingly reluctant to sit through the trial. If there are plenty of panelists remaining, many judges will simply strike such borderline jurors even though they aren't technically cause strikes under Rule 47(f).
  • Counsel should be aware of the “Juab County Effect” In rural counties many of the potential jurors may know the parties, the attorneys, and perhaps even know about the lawsuit. While that might be enough for a “semi-cause” bounce in Salt Lake County, don't expect it to happen outside the Wasatch Front.
  • Cause challenges tend to be more easily granted when the panel is still large enough to ensure that a jury can be constituted. In other words, judges are more likely to bounce borderline panelists for cause when there are enough panelists remaining to ensure that a jury can picked. After cause challenges are made, there needs to be at least 8 plus the number of peremptories needed (usually 6), still remaining on the panel. The point is to ask for a larger panel whenever the case has something about it that may increase the number of cause challenges.
  • There are dozens of reported decisions on the bases for cause challenges. Counsel should review not only those cases annotated at Rule 47 of the Civil Rules but also those following Rule 18, Utah Rules of Criminal Procedure. Only a few of the decisions are referenced here.
  • Crawford v. Manning, 542 P.2d 1091 (Utah 1975). Wrongful death action. One panelist had strong feelings against suits for damages arising out of a death. Trial court would not discharge panelist for cause. Held: reversed. Plaintiff should not have been forced to use a peremptory on this panelist. (This case mandated reversal when a party was forced to use a peremptory challenge on panel member who should have been removed for cause. That rule was later rejected in State v.. Menzies, 889 P.2d 393 (Utah 1994), holding that a defendant must prove prejudice to prevail on a claim of error based on the failure to remove a juror for cause; in other words, that a juror was impartial or incompetent.)
  • Jenkins v. Parrish, 627 P.2d 533 (Utah 1981). Medical malpractice action. Prospective juror admission that she would give more weight to defendant physician's testimony established bias even though she also stated she could be impartial. Therefore, she should have been excused for cause.
  • State v. Menzies, 889 P.2d. 393, 399 (Utah 1994): Error in not removing a juror for bias on a cause challenge is not per se reversible error. Actual prejudice must be shown and the use of a peremptory to remove the juror was not enough.
  • State v. Saunders, 371 U.A.R. 6 (Utah, 1999) (See above under "Voir Dire Procedures.):
  • "We emphasize, again that trial judges should err on the side of caution in ruling on for-cause challenges and that the scope of judicial discretion accorded a trial judge must be evaluated in light of the ease with which all issues of bias can be dispensed by the simple expedient of replacing a questionable juror with another whose neutrality is not open to question. See Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981)."
  • "Nevertheless, while Menzies abandoned the per se rule that the loss of a peremptory challenge because of an erroneous denial of a for-cause challenge is reversible error, Menzies did not foreclose all consideration of erroneous for-cause rulings in determining whether there is sufficient prejudice in the circumstances of the case to require a reversal of a conviction. Menzies held that a defendant had to demonstrate prejudice. See 889 P.2d at 398-400. To that end, we will take into account on a cumulative basis all erroneous rulings with respect to rulings on voir dire and for-cause challenges for the purpose of determining whether there is reversible error. In our view, the trial court's undue limitations on voir dire questions and the trial court's refusal to strike juror Henline are sufficiently cumulative to raise a reasonable question as to the neutrality of the jury and to constitute reversible error. "

APPEALS FOR FAILURE TO GRANT CHALLENGE FOR CAUSE

  • State v. Lelae, 1999 Utah Ct. App. 368, ¶31, 384 UAR 10 is a recent decision affirming the rule set down in State v. Menzies, 889 P.2d 393, 398 (Utah 1994) to the effect that a party who was forced to use a peremptory challenge must prove both that the challenge for cause should have been granted and that the error was prejudicial– which requires proof that a member of the jury that was seated was partial or incompetent.
  • The decision on whether to strike a juror for cause is within the discretion of the trial court and is reviewed by appellate courts on an abuse-of-discretion standard. State v. Cox, 826 P.2d 656, 659 (Utah Ct. App. 1992) and State v. Lelae, supra.

PEREMPTORY CHALLENGES

  • Federal Rule 47 refers to 28 U.S.C. §1870, which allows three peremptory challenges per party, but “several defendants or several plaintiffs may be considered as a single party” and the court may allow additional peremptories.
  • The number of peremptories for multiple parties on a side is a matter of discretion for the trial court. Standard Indus.., Inc. v. Mobil Oil Corp., 475 F.2d 220 (10th Cir. 1973); Goldstein v. Kelleher, 728 F.2d 32 (1st Cir. 1984).
  • See, Deborah F. Harris, Annotation, Distribution and Exercise of Peremptory Challenges in Federal Civil Cases Under 28 U.S.C. §1870, 50 A.L.R. Fed. 350 (1980).
  • Utah Rule 47 allows for three peremptories per party and one for alternates. Where there are several parties on a side, they must join in a challenge before it can be made.
  • Sutton v. Otis Elevator, 249 P. 437 (Utah 1926); Randle v. Allen, 862 P.2d 1329 (Utah 1993); State v. Pena, 869 P.2d 932, 936 (Utah 1994); Carrier v. Pro-Tech Restoration ,909 P.2d 3 (Utah Ct. App. 1995) aff'd 944 P.2d 346 (Utah 1997)(rejecting constitutional arguments of defendants). Rule 47(e) and (c) require that there be a “substantial controversy” between defendants and not merely a derivative cross claim in order for each defendant to get its own set of peremptory challenges. Otherwise, all defendants are limited to a total of three peremptories.

PEREMPTORY CHALLENGES: CONSTITUTIONAL ISSUES

  • Batson v. Kentucky, 476 U.S. 79 (1986): The Equal Protection Clause governs the exercise of peremptory challenges by the state in a criminal trial. Racially-based peremptory challenges are unconstitutional.
  • Annotation: Use of Peremptory Challenges to Exclude Ethnic and Racial Groups, Other Than Black Americans, From Criminal Jury- Post Batson State Cases,20 ALR 5th 398 (1994).
  • Edmondson v. Leesville Concrete Co., 500 U.S. 614 (1991): Batson is not limited to criminal cases but extends to racially-based peremptories in  civil lawsuits between private parties.
  • J.E.B. v. Alabama, 511 U.S. 127 (1994): The Equal Protection Clause prohibits gender-based discrimination in jury selection. “[W]hether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.”
  • Johnson v. Campbell, 92 F.3d 951 (9th Cir. 1996): Jurors may not be disqualified solely because of their sexual orientation; Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994): Equal protection clause does not prohibit use of peremptories for bilingual jurors; U.S. v. Santiago-Martinez, 58 F.3d 422 (9th Cir. 1995): Batson protection does not extend to the obese.
  • State v. Higginbotham, 917 P.2d 545 (Utah 1996) and State v. Cantu, 778 P.2d 517 (Utah 1989). These and other Utah cases apply Batson to state criminal proceedings. State v. Bowman, 945 P.2d 153 (Utah Ct. App. 1997) discusses the necessary showing on knowledge of ethnicity to be made by an opponent of a peremptory strike.
  • State v. Colwell,  _____ UT ______, 386 UAR 42 (2000): Procedure for raising challenge to allegedly race-based peremptory challenge discussed. Challenging party must first make out a prima facie case of improper discrimination and that requires more than the mere fact that the juror was a minority.  Race-neutral explanation by prosecutor was sufficient.
  • State v. Baker, 935 P.2d 503 (Utah 1997): "Cure-or-waive" rule adopted on peremptory challenges. In order to preserve error of trial judge in failing to strike allegedly biased juror for cause, defendant in a criminal case must exercise a peremptory challenge against that juror.
  • Casarez v. Texas, 64 L.W. 2421 (Texas Ct.Crim.App., 12.13.95): Peremptory challenges of the prosecutor in a criminal case that were based on the religion of the challenged potential jurors are not in violation of the Equal Protection Clause. Discrimination on the basis of personal belief has always been considered appropriate for jury selection and is significantly different than excluding someone based on their race or sex. “The treatment of religious creed as an inappropriate basis for peremptory exclusion cannot rationally be distinguished from a similar treatment of persons on account of their Libertarian politics, their advocacy of communal living, or their membership in the Flat Earth Society.”
  • State v. Hodge, 726 A.2d 531 (Conn. 1999): Connecticut's highest court held that the U.S. Constitution prohibits religion-based peremptory challenges. (Note that the U.S. Supreme Court denied a petition for certiorari on the issue of religion-based peremptories in Davis v. Minnesota, 511 U.S. 1115 (1994) from a decision of the Minnesota Supreme Court that concluded the federal constitution does not prohibit a party from exercising a peremptory challenge on the basis of religion.

VOIR DIRE: TORT REFORM ARTICLES AND ADVERTISEMENTS

  • Doe vs Hafen, 772 P.2d 456 (Utah Ct. App. 1989): Scope of voir dire is a matter for the court's discretion.

    • - Refusing to ask prospective jurors what magazines they read was not an abuse of that discretion considering the totality of the voir dire that was asked.

    - The court has a duty not only to ensure impartiality but also to protect the prospective juror's privacy.

    - Foundation must be established before jurors can be asked about specific tort-reform materials under Borkoski v.Yost, 594 P.2d 688 (Mont. 1979) which was adopted. That foundation is a showing that the juror has read anything which might affect his ability to be impartial or that he reads any of the magazines in which the particular tort-reform articles appeared.

  • Ostler v. Albina Transfer Co., Inc., 781 P.2d 445 (Utah Ct. App. 1989): Abuse of discretion not shown in limited voir dire conducted by trial court.

    • - Questions proposed by plaintiff are not apparent from the reported decision but he apparently wanted the court to ask potential jurors whether they had been exposed to tort-reform advertising and the court refused.

    - The judge did ask the venire if any would object to an award in excess of $3,000,000., if any believed that people should not resort to the courts to recover damages, or if any believed that they were incapable of rendering a true and fair verdict based only on the evidence. This was held to be sufficient.

  • Kloepfer v. Honda Motor Co., 898 F.2d 1452 (10th Cir. 1990): No abuse of discretion in refusing to grant voir dire into tort reform and insurance issues where plaintiffs' counsel failed to include the proffered voir dire questions nor the transcript of hearing on them before Judge Jenkins in the record on appeal.
  • Evans vs Doty, 824 P.2d 460 (Utah Ct. App.1991): Plaintiff is entitled to voir dire on general attitudes about medical negligence and tort reform but not necessarily on specific magazine articles absent further foundation.

    • - It is not enough for a judge to ask jurors whether they would be influenced by tort reform propaganda they may have heard or read.

    - The court should ask jurors about specific articles if it is shown that they likely would have been exposed to them and that the articles were published recently enough so that the juror will likely remember them.

    - There was no abuse of discretion by the trial court because the subject tort reform article was three years old and the jurors were not likely to remember it.

    - Trial court also should have asked which jurors had been exposed to tort reform propaganda and not just whether they felt that they would be biased by such materials.

    - Doe v. Hafen rejected to the extent it disallows general questions about tort reform propaganda.

    - Trial court was in error but it was not an abuse of discretion in light of the totality of the voir dire that was asked.

  • Barrett vs Peterson,  868 P.2d 96 (Utah Ct. App 1993): Reversible error for court not to ask voir dire on exposure to tort reform materials. (See plaintiff's proposed voir dire in materials.)

    • - Scope of voir dire is a matter of discretion by the trial court, but that discretion must be exercised in favor of uncovering bias.

    - Trial court commits reversible error when counsel is not afforded an opportunity to gain the information necessary to evaluate jurors

    - Counsel need not show that it would have made a difference to the outcome.

    - Even when specific examples of tort reform propaganda are not presented to the court, a plaintiff may inquire into general exposure to this sort of information, whether or not the juror will admit to being influenced by it.

    - Trial court should have asked if jurors had heard or read anything relating to tort-reform issues, even if plaintiff did not provide specific examples of tort reform materials which this plaintiff did. Followup questions are necessary to those who have been exposed.

    - However, Rule 47 does not require the court to allow attorney-conducted voir dire in any form.

    - Judge Bench's dissent is a must-read.

  • Rasmussen v. Sharapata, 895 P.2d 391 (Utah Ct. App. 1995): Trial judge asked prospective jurors: “What have you read in magazines or newspaper articles or other literature about tort reform or about a lawsuit crisis?”

    • - Tort reform questions are material but scope and manner of jury voir dire is a matter within the sound discretion of the trial court; therefore, abuse-of-discretion standard must be met on appeal.

    - Trial court may use any form of questioning to uncover bias.

    - Rule 47(f)(6) “impartiality” standard for cause challenges is only met when “strong and deep” opinions exist in the juror's mind.

    - Trial court may, indeed must, expend significant effort in rehabilitating a juror to whom an inference of bias has attached. An “inference of bias” attaches to any potential juror who admits reading tort reform literature.

    - Plaintiff's counsel failed to preserve issue of attorney-conducted voir dire for appeal.

  • Davis v. Grand County Service Area, 905 P.2d 888 (Utah Ct. App. 1995)

    • - Wrongful death action tried in Moab against Allen Memorial Hospital.

    - Adequacy of voir dire re whether verdict "would affect them" and what    magazines read.

    - P did not prove how failure to ask question prejudiced their case

  • Of use for federal cases on the scope of voir dire is Donald P. Duffala, Annotation, Propriety and Prejudicial Effect of Federal Court's Refusal On Voir Dire in Civil Action To Ask Or Permit Questions Submitted By Counsel, 72 A.L.R. Fed. 638 (1985).
  • Smith v. Vicorp, Inc., 107 F.3d 816 (10th Cir. 1997) held that a federal district judge in Utah is not bound by the state requirements on "tort reform" voir dire in a diversity action. This is a matter of federal law within the broad discretion of the trial court and is not delineated by the stricter requirements of Barrett v. Peterson and other Utah decisions.

VOIR DIRE RE LIABILITY INSURANCE

  • Balle vs Smith, 17 P.2d  224 (Utah 1932): A plaintiff is entitled to know if a potential juror has any connection with an insurance company that has an interest in the action. The inquiry must not be intended to or actually convey the impression that defendant is insured.
  • Saltas v. Affleck, 105 P.2d 176 (Utah 1941): Voir dire inquiry inappropriately made references to defendant's insurance carrier. It was error to ask each juror as to his or her connection with a specific insurance company so as to tip-off the jury to the real party in interest.
  • King v. Fereday, 739 P.2d 618 (Utah 1987): Trial court's asking potential jurors if they had “any stock ownership in a business and, if so, the nature of the business” was enough in conjunction with asking employment questions to bring to light any connection with defendant's insurance carrier.
  • Broberg vs Hess, 782 P.2d 198 (Utah Ct. App.1989): Discusses the insurance issue but dodges it because counsel failed to object to the failure to give proposed written voir dire on the record.
  • Doe vs Hafen, 772 P.2d 456 (Utah Ct. App. 1989): Under some circumstances, parties have a right to establish a juror's relationship or interest in the insurance company that will pay the damage award. However, that limited inquiry into liability insurance must be made in good faith and not meant to inform the jurors that an insurance company is involved.
  • State v. Pascoe, 774 P.2d 512 (Utah Ct. App. 1989): Trial court refused to ask the prospective jurors whether they had directly or indirectly worked with insurance agencies or claims adjustment bureaus, but they were asked where they worked. Plaintiff failed to prove bias on the part of any panelist and the trial court did not abuse its discretion in disallowing the question.
  • Evans vs Doty,  824 P.2d 460 (Utah 1991): Plaintiffs must conduct any insurancerelated inquiry in good faith.

OTHER VOIR DIRE DECISIONS

Hornsby v. Presiding Bishop, 758 P.2d 929 (Utah Ct. App. 1988): Voir dire on religious affiliation is appropriate when a religious organization is a party.

State v. Baker, 884 P.2d 1280 (Ut. Ct. App. 1994): Trial court has a duty to expend significant effort in rehabilitating a juror to whom even an inference of bias has attached. However, while mere "inferences" of bias can be overcome, indications of "actual" bias cannot be overcome and a juror demonstrating actual bias may not sit. This case was reversed on appeal, 935 P.2d. 503 (Utah 1997), in a decision in which the Supreme Court adopted the "cure-or-waive" rule but did not address the need for rehabilitation attempts of potentially biased jurors by the trial court.

 

Contact the Section
litigationsec@utahbar.org