Judicial Economy vs. the Impartial Jury - Time to Stop Compromising Fairness

            The Sixth Amendment guarantees “the right to an impartial jury,” and the U.S. judicial system created juror strikes to ensure that biased jurors cannot taint the pool.  Our system generally accepts that a juror cannot think impartially when that juror is “too close” to the matter at trial.  Such a juror should be struck for cause.  No one wants to be convicted by a bunch of people who cannot be fair.

            To root out those bad jurors, attorneys (and sometimes judges) conduct voir dire.  Research indicates that when the court allows more time for voir dire, the more questions each party can ask, therefore the more insight each party gains into each potential juror’s thinking.  It follows naturally that, in such a scenario, the court grants more strikes for cause.  Further, courts grant more strikes for cause when attorneys and judges question each potential juror individually, as opposed to questioning them in a group setting.  This individual questioning also consumes time, but the ABA acknowledges that courts should permit such questioning in the interest of fairness.

The problem with judicial economy

            Unfortunately, judges must limit each party’s time for voir dire because that same court must hear other cases. After all, the Sixth Amendment also promises the right to a speedy trial for other, still-waiting defendants.  Attorneys could easily swear that they need a full week to adequately root out all biases.  Even worse, attorneys may inappropriately use this extra time to charm the venire.

These are legitimate concerns, but our system has accidentally sacrificed something along the way: fairness.  The entire American judicial system revolves around the idea that trials must be fair, otherwise a tyrannical judge or other leader could rig the outcomes.  This idea of “fairness” obviously clashes with time-limited voir dire.  If the court knows that more questions will result in more strikes for cause, the court knowingly endangers fairness when it imposes a time limit.  Courts never compromise any other outcome-determinative right so recklessly.

  Research indicates that the average real-life voir dire period stretches between two and four hours, depending on (a) the severity of the case, and (b) whether a civil or criminal court hears the case (See Neil Vidmar & Valerie P. Hans, American Juries: The Verdict 89 (2007)).  To increase fairness, a court need only bump the average time up to five hours and allow for individual questioning (See id. at 91).  While some may counter that any mandatory time increases will inevitably waste judicial resources, a court cannot “waste” resources by increasing voir dire time any more than it can “waste” resources by giving a defendant fair notice of his upcoming trial.

A broad solution

            To preserve the fairness of our judicial system, which preserves our entire society, our system needs to protect jury impartiality the same way that it protects due process.  Instead of providing the bare minimum amount of time for voir dire, we must provide an amount of time that will exhaust the bias-seeking questions of an attorney or judge.  A court would obviously violate a defendant’s due process rights if it permitted thirty-one minutes of trial notice to a defendant who lives thirty-one minutes away.  Courts do not endorse a “just enough time” policy for due process, and they should stop doing so for voir dire.