Voir Dire

Voir Dire

The statutory qualifications make the first cut of the venire, and they cut on objective grounds only. A federal juror must be a United States citizen, a resident of the judicial district for one year, at least eighteen, literate enough to complete a juror-qualification form, fluent in English, mentally and physically capable of service, and free from any pending charge or past conviction for a crime punishable by imprisonment for more than one year.¹ None of those criteria tells the court whether a particular person can decide a particular lawsuit fairly. A qualified juror may know the facts, may be acquainted with a party, a witness, or a lawyer, may hold an occupation that breeds bias, or may have been sued in a similar case.² Only questions bring those matters out, and the questioning is called voir dire, from the French for “to see to speak.”³

Rule 47(a) governs the examination in civil cases, and Federal Rule of Criminal Procedure 24(a) governs it in criminal cases; for practical purposes the two rules are identical.⁴ The first subsection below asks who puts the questions. The second asks what the questions are for and where the law stops them.

Who Conducts Voir Dire

Rule 47(a) lets the trial court choose between two methods and attaches a safeguard to only one of them. The court may permit the parties or their attorneys to examine prospective jurors, or it may examine them itself.⁵ If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or it must itself ask any of their additional questions it considers proper.⁶ Lawyer-led examination carries no condition. Judge-led examination carries a guarantee that counsel’s concerns can still reach the jurors.

The guarantee has two features. First, the duty is framed in the alternative, so the judge decides whether counsel will put the follow-up questions or the judge will. Either satisfies the rule, and counsel cannot insist on addressing the jurors once the judge has taken over the examination. Second, the duty reaches only inquiry the court considers proper. A judge who declines an argumentative or repetitive question has therefore complied with the rule.

Each method has a cost. Lawyer-led questioning gives counsel direct contact with the people who will decide the case, and lawyers in state courts prize that contact and use it to build rapport.⁷ Many regard rapport-building as an illegitimate use of the examination.⁸ Judge-led questioning puts the judge, and not an advocate, in front of the venire, and some judges find it draws franker answers. The trial judge in Skilling v. United States said he got “more forthcoming responses from potential jurors than the lawyers on either side,” and he thought a person asked by the judge would answer more candidly than one asked by a lawyer.⁹ The price of the judge-led method is that the parties lose direct contact with the jurors. The duty to allow or ask proper further questions repairs that loss.

The same judge agreed to examine venire members individually about pretrial publicity and promised counsel the chance to ask follow-up questions, so the judge-led model operated with its safeguard in place.¹⁰ Skilling was a criminal prosecution, and the court gave the defendants jointly two more peremptory challenges than Federal Rule of Criminal Procedure 24 prescribes.¹¹ It is a parallel and not a civil holding, but the comparison is fair because the civil and criminal rules are practically identical.¹²

Federal courts lean toward the judge-led method. The usual federal pattern is for the judge alone to examine the venire, with counsel tendering any additional questions for the judge to consider.¹³ The judge may question the panel as a whole rather than one juror at a time, and counsel must be content with submitting questions.¹⁴ Practice varies from court to court. Some judges question jurors individually or as a group, perhaps asking questions the lawyers submitted, while in other courts counsel may ask additional questions of individual jurors.¹⁵ Who asks matters because the judge’s control fixes the range of information counsel can learn about each juror, and that information feeds both challenges for cause and peremptory challenges.¹⁶ One federal opinion observed that trial judges exercise substantial control over voir dire and that some conduct the entire examination themselves, as was common in the district where that case was tried.¹⁷

What separates the two courtrooms is whether proper further inquiry got to the jurors, since the judge did the talking in both. A judge who had refused the damage-award questions because they were argumentative would stand on the first judge’s side of the line. The rule guarantees counsel a path to the jurors for proper questions, and it leaves the judge in charge of deciding which questions qualify.

Local rules fill in detail around Rule 47(a), but only up to the line Rule 83 draws: a local rule must be consistent with the Federal Rules.¹⁸ The test is easy to see in the jury-size setting, where a local rule calling for eight jurors is consistent with Rule 48 because the Federal Rule allows anywhere from six to twelve.¹⁹ Apply the same test to voir dire. A local rule telling counsel to hand up proposed questions before the venire is called supplements Rule 47(a), because the judge can still ask or allow every proper question. An early deadline also fits the contemporary practice of having the parties confer soon after filing to agree on a trial plan.²⁰ A local rule forbidding all supplemental inquiry would contradict the duty the rule imposes and could not stand.

Purposes and Limits of Voir Dire

Rule 47(a) says who asks and is silent about what the questions are for.²³ The purpose comes from the problem the examination solves: finding prospective jurors so biased or prejudiced about the case that they could not reach an independent judgment on the evidence presented.²⁴ That purpose is the same whether the judge or the lawyers do the asking.²⁵

The answers feed the two tools for removing an individual juror. The first is the challenge for cause. When the answers suggest bias, the attorney may challenge for cause, and if the judge agrees, the juror is disqualified.²⁶ A party needs information and not a suspicion. A juror who discloses acquaintance with a witness, or a prejudice, supplies a ground, and a juror who says nothing supplies none.²⁷ The second tool is the peremptory challenge, which a party exercises in specified numbers without giving any reason.²⁸ It reaches jurors who are merely suspected of bias, or who seem, because of their backgrounds and experience, more likely to favor the opponent.²⁹ The court must allow the number of peremptory challenges that 28 U.S.C. § 1870 provides, and each side gets a limited number.³⁰ That scarcity gives the answers their value, because a strike spent on a guess is unavailable for the juror who later turns out to be a real problem.

A third use of the examination is the controversial one. Lawyers also use voir dire to indoctrinate prospective jurors on the merits and to develop rapport, and many do not view that use as legitimate.³¹ A more candid and less contested aim is simply to get a feel for the personalities and likely views of the people on the panel.³² Persuasion and rapport therefore sit outside the examination’s official purposes. The court’s power to exclude questions intended solely for an improper purpose is how it keeps them in check.³³

The judge’s power to sustain that objection is part of a broader discretion over what may be asked. The trial judge has considerable discretion and must be free to exclude questions intended solely for an improper purpose, to restrict questioning to relevant matters, to protect the privacy of prospective jurors, and to set reasonable time limits.³⁴ The judge may also change where the questioning takes place in order to protect juror privacy.³⁵ Each limit answers a different risk. Excluding improper questions answers the advocacy problem in the ladder example. Relevance and time limits keep the examination in proportion when twenty-five to forty prospective jurors are waiting in the courtroom.³⁶ Privacy protection matters because a juror asked about a private matter in front of strangers may hedge, and a hedged answer defeats the purpose of asking. Rule 47(a) builds the same screening power into its text, because the court’s duty to allow or ask further questions extends only to inquiry it considers proper.³⁷ The public’s access is a separate limit. Any closure of voir dire to the press and public must rest on a compelling governmental interest and be narrowly tailored to serve it.³⁸

Appellate review of these choices is deferential. A party who loses a challenge for cause can raise it on appeal from the final judgment, and the verdict will be overturned if the trial court’s ruling was an abuse of discretion.³⁹ Challenges to a judge’s limits on questioning seldom prevail. Ham v. South Carolina is described as an unusual case in which one did.⁴⁰ Ham, a Black civil rights worker, was convicted of possessing marijuana. The trial judge asked general questions about bias, prejudice, or partiality but declined the defense’s questions about prejudice against the defendant because of his race. The Court held that the Fourteenth Amendment required the judge to interrogate the jurors on racial prejudice, and it noted that either of the brief, general questions the defense urged would have sufficed to focus the jurors’ attention on any racial prejudice they might entertain.⁴¹ Ham arose from a state criminal prosecution, so read it as the exception that shows how much latitude the trial judge ordinarily has.

The practical lesson is that the burden of asking falls on the parties. In Wilson v. Vermont Castings, a plaintiff sued a stove maker for a product defect, and a juror owned the same defendant’s product.⁴² If the plaintiff was concerned that prospective jurors owned the defendant’s stoves, her lawyer should have asked them, or asked the judge to ask them, during voir dire, and then challenged the owners for cause or used one of her three peremptory challenges to strike them. Having done neither, she probably cannot complain now.⁴³ The rule has a reason behind it. The parties know better than the court what they fear, and a concern raised during voir dire can be fixed while fixing is cheap. A concern held back until after an unfavorable verdict lets a party keep a known risk in reserve and gamble on the outcome. The note also recognizes a practical limit: if most people in a community own a product, excluding every owner on that ground alone may be impractical.⁴⁴ A party who raised the point and lost can appeal the ruling for abuse of discretion, while a party who never raised it has nothing to review.⁴⁵