Voy-Die-Yer Madness: Which
Method is Best at Eliciting Truthful, Honest Responses?
Did you
have a Happy March Fool’s Day? Or is
that April Fools’ Day? What if the joke
about April Fools’ Day is that it’s really on March 1st? Too much of a stretch, eh? Silliness aside, welcome to March. Can you believe we are three-months deep into
2019? Wow, that’s fast. Let us dive right in.
To my
readers who have fulfilled their civic duty as jurors or potential jurors,
assuredly, you are familiar with voir dire
(“voy-die-yer,” as pronounced here in Texas using the highly sophisticated
and enviable Texi-French dialect). For my
readers who are unfamiliar, I will explain it to y’all. Voir
dire is the question and answer process potential jurors undergo in order
to determine who among the jury pool (the venire)
will become actual jurors. Though the specific
process differs among state courts and between state and federal courts, the general
process consists of in-person questioning of potential jurors, typically at a
courthouse, either by attorneys
for both parties to the legal action or by the judge
who will preside over the action. In the
latter instance, parties’ attorneys still may participate in the process. During in-person questioning, a group of
potential jurors selected from the venire
sit next to each other and answer questions that help the questioner, opposing
counsel, and the judge determine each potential juror’s suitability for jury
service. Whether questioned by attorneys
or by the judge, each potential juror answers questions in the presence of other
potential jurors. This is the archetypal model for conducting voir dire with which most of the
American public is likely familiar.
About two
years ago, I observed voir dire in
federal court that departed from this model.
During that voir dire, the
judge questioned potential jurors individually,
outside the presence of other potential jurors but in the presence of parties’
attorneys. The judge summoned potential
jurors to the front of the judge’s bench and, in what seemed to be an informal
manner, asked questions. The process appeared
more natural and conversational than other voir
dire proceedings I had observed. The potential jurors I observed during
questioning appeared more relaxed. I
wondered then what I wonder now, and what I now pose to you. Which
method of conducting voir dire best
fulfills its purpose of determining a potential juror’s suitability for service
as a juror?
I reckon
(does anyone say “reckon” anymore?!) before you answer that you would need to
know what makes a potential juror suitable for service. As inferred from the three purposes of voir dire articulated in an Indiana Law
Journal article,
a potential juror is suitable for service if the juror “satisfies statutory
requirements for serving on a jury . . . can impartially participate in the
deliberation on the issues of the case based solely on the law and evidence as
presented at trial” and avoids being excused by an attorney’s peremptory (not
for cause) challenge. Voir dire, which literally means “to speak the truth,” is
designed to elicit truthful, honest responses to questions in order to fulfill
the three purposes.
Which
method of voir dire would best elicit
truthful, honest responses from you—voir
dire in the presence of your peers with whom you could spend hours, days,
weeks, or months observing and deciding the outcome of a trial, or voir dire outside the presence of those
peers?
Before you answer, consider that some of the questions asked
during voir dire could include any of
the following:
See y’all potential voy-die-yer-ers next time!
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