NCJ Number
43376
Journal
Judicature Volume: 61 Issue: 2 Dated: (AUGUST 1977) Pages: 71,76-78
Date Published
1977
Length
4 pages
Annotation
AN ATTORNEY ARGUES THAT ATTORNEY PARTICIPATION IN VOIR DIRE ASSURES NOT ONLY FAIRNESS TO THE DEFENDANT, BUT ALSO JUSTICE IN THE COURT.
Abstract
THE MAJOR ARGUMENT FOR TRANSFERRING CONDUCT OF VOIR DIRE FROM ATTORNEY TO JUDGE IS BASED ON ECONOMY AND EFFICIENCY. A JUDGE, IT IS ARGUED, WOULD ELIMINATE MANY IRRELEVANT QUESTIONS ASKED BY THE PROSECUTOR, PLAINTIFF'S ATTORNEY, OR DEFENSE ATTORNEY, AND THUS EXPEDITE JURY SELECTION. THE AUTHOR FEELS THAT SUCH AN OBSESSION WITH THE QUANTITATIVE RATHER THAN THE QUALITATIVE ASPECTS OF JUSTICE DEGRADES JUSTICE ITSELF. HE ARGUES THAT SINCE THE JUDGE'S CONCERN LIES IN EXPEDITIOUSNESS, HE WILL OFTEN CONDUCT VOIR DIRE SUPERFICIALLY; THE ATTORNEY, ON THE OTHER HAND, BY VIRTUE OF HAVING A THOROUGH KNOWLEDGE OF THE ISSUES AND EVIDENCE THAT WILL ARISE DURING THE COURSE OF TRIAL, IS IN A BETTER POSITION TO EXPLORE THE THOUGHT PROCESSES OF THE JURORS. HE ADDS THAT MANY PROSPECTIVE JURORS, AWED OR INTIMIDATED BY THEIR SURROUNDINGS OR THE INTERROGATING JUDGE, MIGHT BE KEPT FROM ANSWERING SATISFACTORILY. JUDGE-CONDUCTED VOIR DIRE IN WHICH THE JUDGE DOES NOT PERMIT COUNSEL TO PARTICIPATE MAKES IT DIFFICULT FOR COUNSEL TO IDENTIFY AND CHALLENGE BIASED JURORS. MORE IMPORTANTLY, EVEN JUDGES CANNOT ESCAPE THE HUMAN TENDENCY OF BIAS. THE AUTHOR BELIEVES THAT TRIAL ATTORNEYS HAVE DEVELOPED A PERCEPTIVENESS THAT ENABLES THEM TO DETECT BIASES OR THE INABILITY TO REACH A DECISION IN JURORS; THE ATTORNEYS ARE INTERESTED IN OBTAINING JURIES FAVORABLE TO THEIR CLIENTS. FURTHERMORE, THE 'FAIRNESS OF THE ADVERSARY PROCESS DEPENDS UPON UNFETTERED ATTORNEY PARTICIPATION IN VOIR DIRE, JUST AS IN OTHER PARTS OF THE CASE.' PEOPLE WILL HAVE MORE CONFIDENCE IN A SYSTEM IN WHICH THEY CAN CONTEST THE IMPARTIALITY OF THOSE WHO JUDGE THEM. IT IS CONCLUDED THAT SPEED IS THE ENEMY OF JUSTICE, AND THAT DELAYS AND LITTLE INCONVENIENCES IN THE SYSTEM MAY BE THE PRICE TO PAY FOR JUSTICE. (SEE NCJ-43375 FOR A DISCUSSION OF THIS ISSUE FROM THE JUDGE'S VIEWPOINT).