NCJ Number
45732
Date Published
1977
Length
38 pages
Annotation
AN OVERVIEW OF THEORY, PRACTICE, AND OPINION AS OF MARCH 1977, ON THE CONDUCT OF THE VOIR DIRE EXAMINATION AS PUT FORTH BY THE FEDERAL RULES OF CIVIL AND CRIMINAL PROCEDURES (RULES 47A AND 24A RESPECTIVELY) IS GIVEN.
Abstract
THE TWO RULES PERTAINING TO VOIR DIRE EXAMINATION OF JURORS ARE VIRTUALLY IDENTICAL AND GRANT THE JUDGE BROAD DISCRETION IN CONDUCTING THE EXAMINATION. IN PARTICULAR, THE JUDGE NEED NOT ALLOW COUNSEL TO ORALLY QUESTION MEMBERS OF THE VENIRE (PROSPECTIVE JURORS). THE AMERICAN BAR ASSOCIATION HAS TAKEN EXCEPTION TO THIS PRACTICE AND RECOMMENDS THAT THE COUNSEL FOR EACH SIDE SHOULD HAVE THE RIGHT TO QUESTION JURORS INDIVIDUALLY AND AS A PANEL, PARTICULARLY WHEN THERE IS REASON TO BELIEVE THE PROSPECTIVE JURORS HAVE PREVIOUS EXPOSURE TO, OR PRECONCEPTIONS REGARDING THE CASE. SINCE THE RULE IS DISCRETIONARY, ITS VALUE CAN ONLY BE INTERPRETED BY REFERENCE TO THE PRACTICES OCCURING UNDER IT. CONSEQUENTLY, A MAIL SURVEY OF 387 ACTIVE FEDERAL DISTRICT JUDGES AND 96 SENIOR JUDGES WAS UNDERTAKEN. THE OVERALL RETURN RATE WAS 87 PERCENT; 94 PERCENT OF THE ACTIVE JUDGES AND 57 PERCENT OF THE SENIOR JUDGES RESPONDED. IT WAS FOUND THAT IN BOTH CIVIL AND CRIMINAL TRIALS APPROXIMATELY THREE-FOURTHS OF THE JUDGES DO NOT ALLOW ORAL PARTICIPATION BY COUNSEL, ALTHOUGH A LARGE MAJORITY OF THESE DO ACCEPT AND PRESENT COUNSEL QUESTIONS IN EITHER EDITED OR UNREVISED FORM TO JURORS. STATE VOIR DIRE LAWS INFLUENCE PRACTICE IN SOME STATES. THE AVERAGE TYPICAL DURATION OF THESE EXAMINATONS WAS 43.8 MINUTES, AND 82 PERCENT OF THE JUDGES ESTIMATED DURATION AT 1 HOUR OR LESS. IN GENERAL THE ESTIMATED DURATION OF EXAMINATION FOR CRIMINAL AND CIVIL CASES, WITH OR WITHOUT COUNSEL ORAL PARTICIPATION, ARE NOT SUBSTANTIALLY DIFFERENT. IN TERMS OF THE RELATIVE IMPORTANCE OF THE SUBSTANTIVE, ADMINISTRATIVE, AND SOCIAL/EDUCATIONAL PURPOSES OF THE EXAMINATION, MORE THAN TWO-THIRDS OF THE JUDGES RANKED INSURING MAXIMUM JUROR IMPARTIALITY AS BEING MOST IMPORTANT. THE PRIMARY RESPONSIBILITY OF THE JUDGE DURING EXAMINATION WAS SEEN AS INSURING IMPARTIALITY, WHILE THE LAWYER'S DUTIES WERE SEEN AS PROTECTING CLIENT INTEREST, INSURING IMPARTIALITY AND EXTENDING JUDICIAL INQUIRY DIRECTLY AND INDIRECTLY. MORE THAN HALF OF THE JUDGES AGREED WITH THE ASSERTION THAT THE EXAMINATION SHOULD PRECEDE THE BEGINNING OF ADVERSARIAL ADVOCACY, AND ONLY 5 PERCENT BELIEVED ADVERSARIAL ADVOCACY TO BE THE MOST EFFECTIVE MEANS OF SELECTING AN IMPARTIAL JURY. IN GENERAL, JUDGES' PRACTICES WERE CONSISTENT WITH THEIR STATED OPINIONS. MIXED ATTITUDES WERE FOUND CONCERNING THE LAWYERS' PERCEIVED VOIR DIRE SKILLS. ANALYSIS OF THE IMPLICATIONS OF THE FINDINGS FOR POLICY FORMULATION LEADS TO THE FOLLOWING CONCLUSIONS (1) COUNSEL PARTICIPATION IS NOT SHOWN TO BE A MAJOR FACTOR IN AIDING COUNSEL TO EXERCISE PEREMPTORY CHALLENGES; (2) DENYING ORAL PARTICIPATION PREVENTS COUNSEL FROM EXERCISING OTHER ADVERSARIAL TECHNIQUES DURING EXAMINATION; AND (3) THERE IS NO OBJECTIVE INFORMATION FOR CONSIDERING THE RELATIVE MERITS AND DEMERITS OF ALLOWING FULL COUNSEL PARTICIPATION. FINALLY, IT IS RECOMMENDED THAT RULES GOVERNING EXAMINATIONS REMAIN UNCHANGED. VOIR DIRE INSTRUCTIONS FROM JUDGE W. K. URBOM IN U.S. VERSUS BAKER ARE REPRODUCED. (JAP)