Jury Reforms

Voir Dire

The process of selecting trial jurors from a panel of prospective jurors is called voir dire, a term derived from 14th-century legal French, which, loosely translated, means “to speak the truth.” Typically, voir dire consists of a limited question-and-answer period in which the trial judge and attorneys examine prospective jurors to determine if they can serve fairly and impartially on that trial. If the judge concludes from this examination that a particular juror has life experiences, opinions, or attitudes that would prevent him or her from serving impartially, that juror will be removed “for cause.” After all the “for-cause” jurors have been excused, the attorneys have the opportunity to remove those jurors who they suspect may be predisposed against their clients by using a statutorily defined number of “peremptory challenges.” After all the for-cause and peremptory challenges have been executed, the jurors who remain are sworn as the trial jurors. The amount of time needed to select a jury varies according to the type of case to be tried (e.g., felony, misdemeanor, civil), the legal requirements and mechanics of voir dire, and the local legal culture, but it generally ranges from 1 to 3 hours.

A number of concerns about the voir dire process have risen in recent years. Some of these focus on the legitimacy of the criteria that judges and attorneys employ when deciding to remove or retain jurors. Most often, these debates take place in the context of proposals to reduce the number of peremptory challenges in order to minimize the opportunity for attorneys to discriminate on the basis of race, ethnicity, or gender—a practice ruled unconstitutional by the U.S. Supreme Court in Batson v. Kentucky (1986) and its subsequent progeny. The counterargument by the practicing bar is that peremptory challenges are needed as a remedy for the failure of trial judges to grant challenges for cause, even when a juror's responses to voir dire questions indicate bias or prejudice. Thus far, Maryland is the only state to successfully reduce the number of peremptory challenges, and that legislation was driven as much by cost considerations as by concerns about the discriminatory use of peremptory challenges. However, several other jurisdictions—notably California, New Jersey, and the District of Columbia—are seriously considering legislation that would substantially reduce the number of peremptory challenges.

Other proposals for improving voir dire focus on the efficacy of the voir dire process in eliciting candid and useful information from jurors. Empirical studies have repeatedly found that up to one in four prospective jurors fail to disclose case-relevant information during voir dire. In some instances, jurors are reluctant to reveal personal or sensitive information to a courtroom full of strangers. In other instances, jurors are unwilling to disclose information that they believe is not relevant to the case. Often the mechanics of the voir dire process—for example, whether the judge or lawyers question the jurors, whether jurors are told to raise their hands or respond orally to questions—send subtle messages about the judge's desire, or lack thereof, for complete disclosure by jurors.

...