While opinions vary on which aspect of trial is most important, I suggest it is voir dire, the process of selecting the jury. The term has its origin in the oath taken by jurors to speak the truth. The word “voir” is said to derive from the Latin word “verum” meaning truth. Many cases are lost the second the jury is sworn in. Great advocacy cannot save the day when the wrong jury is in the box. Trial lawyers should pay more attention to preparing for voir dire, and even consider asking the court to permit submission of a jury questionnaire.
Many years ago there was a trial lawyer who was known to state confidently in open court during jury selection, “Your Honor, I have no need to strike any of these good people seated in the jury box. They all are very satisfactory to the defense.” This same lawyer could never understand why he lost so many cases. He lacked appreciation for the importance of attempting to learn the jurors’ predispositions, beliefs and values, the keys to reaching minds and hearts of jurors in the courtroom deciding the case. All of us possess predispositions to think and behave in a particular way. These predispositions are based on experience and play a role in jury deliberations.
While the process of voir dire permits trial counsel to pose questions to the jury panel to discover bias, only some courts, such as Texas state courts, permit full voir dire where lawyers directly ask questions to the individual prospective jurors. In Maryland, state courts offer a limited voir dire. This is true for mosts courts across the country, including most federal courts, barring a cause celebre. The process involves counsel preparing questions for the trial judge to pose. A few states, including Maryland, further limit voir dire questions to elicit responses only for the purpose of using strikes for cause as distinguished from posing a question to determine if peremptory challenge should be made.
Last week the Maryland Daily Record gave us a helpful rundown of several new Maryland Court of Appeals modifications to some often-asked voir dire questions. The Court of Appeals, while rendering a couple of recent opinions, clarified when certain questions proposed by counsel should be asked: In Pearson v. State, 432 Md., Court of Appeals, No. 49, September Term, 2013, Maryland's highest court held that (1) a trial court need not ask during voir dire whether any prospective juror has ever been a victim of a crime, but, on request, a trial court must ask during voir dire: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” and (2) when all of the state’s witnesses are members of law enforcement agencies and/or when the basis for a conviction is reasonably likely to be the testimony of members of law enforcement agencies, on request, a trial court must ask during voir dire: “Have any of you ever been a member of a law enforcement agency?”
Pearson emphasized my previous point that Maryland employs limited voir dire. That is, in Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of specific cause for disqualification. Unlike many other jurisdictions, facilitating the intelligent exercise of preemptory challenges is not a proper purpose of voir dire in Maryland. Thus, a trial court need not ask a voir dire question that is not directed at a specific cause for disqualification or is merely fishing for information to assist in the exercise of preemptory challenges.
The court explained its reasoning why a trial court need not ask during voir dire whether any prospective juror has ever been the victim of a crime: a prospective juror’s experience as the victim of a crime lacks a demonstrably strong correlation to a mental state on the part of the juror that would give rise to specific cause for disqualification. However, the Court of Appeals held that on request, a trial judge must ask during voir dire whether any prospective juror has strong feelings about the crime with which the defendant is charged. State v. Shim, 418 Md. 37, 54, 12 A.3d 671 (2011). The “strong feelings” voir dire question makes the “victim” voir dire question unnecessary by revealing the specific cause for disqualification at which the victim voir dire question is aimed.
Pearson held that on request a trial court must ask the “strong feelings" question with the following phraseology: “Do any of you have strong feelings about [the crime with which the defendant is charged]?” Pearson disapproved phrasing the question as a compound question, i.e., “Does any member of the jury have such strong feelings about [the charges in this case] that it would be difficult for you to fairly and impartially weigh the facts?” The reason the court disapproved of the compound question is that it shifts from the trial judge to the prospective jurors the responsibility to determine if the prospective juror is biased.
If a prospective juror responds affirmatively to the “strong feelings” voir dire question, that juror should be individually questioned by the attorneys; or on request, by the trial judge, and the trial judge would then determine whether that prospective juror’s strong feelings about the crime with which the defendant is charged constitutes specific cause for disqualification.
Pearson also held that where all of the state’s witnesses are members of law enforcement agencies and/or where the basis for a conviction is likely to be the testimony of members of law enforcement agencies, a trial court on request must ask during voir dire: “Have any of you been a member of a law enforcement agency?” A defendant is entitled to know whether a prospective juror has worked in the law enforcement field if all of the state’s witnesses and/or the witnesses whose testimony is reasonably likely to be the basis for a conviction are members of law enforcement.
Just as with the “strong feelings” question, the appeals court stressed that a juror is not automatically disqualified just because she responds affirmatively to the “member of the law enforcement agency” voir dire question. After the prospective juror is individually questioned by the attorneys or, upon request, by the trial court, the trial court determines whether or not the prospective juror’s having been a member of a law enforcement agency constitutes specific cause for disqualification. The court noted in Pearson that its holdings in that case shall apply prospectively as of February 21, 2004, the date Pearson was decided.
Trial lawyers in Maryland are eager for the Rules Committee of the Court of Appeals to adopt individual voir dire. Alas this wish is unlikely to come true. For more insight into voir dire, see Anatomy of a Trial: A Handbook for Young Lawyers, 2nd Edition (ABA, March 2014)