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D. THE JUDGE'S ROLE - MN Bench Book - Trial Procedures & Practices for Judges
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D. THE JUDGE'S ROLE

From MN Bench Book - Trial Procedures & Practices for Judges

1. PROCEDURAL MANAGER: The trial judge is the procedural manager of the trial. He or she is responsible for ensuring that rules are enforced and the dignity of the proceedings is preserved.

In voir dire, judges interpret this role in various ways. The extremes are:

a. Don't involve me the passive judge who asks no questions and allows virtually everything.
b. Federal mind the judge who reluctantly agrees that a few perfunctory questions would make things look good and who begrudgingly allows the lawyers to ask a few questions.
c. Most trial judges fall in between these extremes.
2.EXAMINER: The judge in Minnesota civil and criminal trials shares with the lawyers the process of voir dire.
a. THE CIVIL RULE IS 47.01, Minn. R. Civ. P., which says:

The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.

Although one could read this rule as giving the judge the right to conduct the voir dire in its entirety, it is the better practice at least to allow the lawyers to "supplement" by asking their own proper questions.

A good reason for this is that lawyers often get more candid answers because some jurors are less intimidated by the lawyers than they are by the judge.

b. THE CRIMINAL RULE IS The criminal rule is 26.02, subd. 4(1). It says:

The judge shall initiate the voir dire examination . . . . The judge shall then put to the prospective juror or jurors any questions which the judge thinks necessary touching upon their qualifications to serve as jurors in the case on trial . . . . Before exercising challenges, either party may make a reasonable inquiry of a prospective juror or jurors in reference to their qualifications to sit as jurors in the case.

The Comment to this rule is worth noting: 'The court has the right and duty to assure that the inquiries by the parties during the voir dire examination are 'reasonable.' The court may therefore restrict or prohibit questions that are repetitious, irrelevant, or otherwise improper."

3 PROTECTOR: Prospective jurors should not be fair game for overly aggressive lawyers bent on exposing the juror's very soul.

The trial judge should protect the jury against that unnecessarily invasive probing that some jurisdictions tolerate as proper voir dire.

Although a juror gives up some privacy, he or she is not required to relive painful experiences; to defend deeply held political, religious or philosophical beliefs; or to take a social studies quiz on the law.

Cases sometimes use lofty language when condemning arbitrary restrictions of voir dire by trial judges. The 8th Circuit Court of Appeals in United States v. Bear Runner, 502 F.2d 908, 911 (8th Circuit 1974) said that a "searching voir dire is a necessary incident to the right to an impartial jury." True, but "searching" is not tantamount to "eviscerating." Virtually everything in a democracy involves tradeoffs.

Thus, the searching voir dire must be balanced against a juror's basic right to retain dignity and reasonable privacy.

The trial judge must protect that right.

4. JUDGE'S CONTROL OF VOIRE DIRE: Assume that the trial judge is interested in affording a fair trial and in obtaining a fair jury. In fact, the judge is professionally committed to both ideals.

With that assumption, The judge can utilize a variety of techniques to guide and direct the process so that a fair jury can be selected in a way that protects the integrity of the panel members and still allows the attorneys to engage in a full and thorough voire dire.

a. Lawyers should enlist the judge's help in asking delicate and sensitive questions. Maybe the judge will ask the questions; or maybe the judge will permit certain answers to be given at the bench.
b. By reviewing the scope of voir dire before beginning the process. The lawyers should inquire about the propriety of questions they are not sure about.
c. By permitting the use of a written questionnaire. This is an excellent tool that has many benefits. Most significantly, it saves voir dire time (although there can be follow up questions); it allows inquiry into more sensitive areas; it fosters more candid responses (because the panel member does not have to discuss them in detail in front of the others); and it better protects juror privacy.
d. By informing the panel at the beginning of voir dire that they can answer a question they deem sensitive or embarrassing outside the hearing of the other members of the panel. Note; the courtroom cannot be closed and the defendant has a right to hear the answer.
5. IMPROPER LIMITATIONS : Although the judge can impose reasonable restrictions on voir dire, he or she cannot arbitrarily limit proper voir dire.
a. The imposition of artificial time limits is an example of judicial abuse. As the appellate court noted in State v. Evans, 352 N.W.2d 824, 826 827 (Minn. App. 1984), a robbery and assault case in which the judge gave each lawyer one hour to conduct voir dire.
Note also State v. Petersen, 368 N.W.2d 320, 322 (Minn. App. 1985) in which it was held to be reversible error for the trial judge in a DWI case to limit the voir dire to five minutes per juror.
b. Although the trial court has broad discretion to determine the scope of voir dire, it cannot unreasonably and arbitrarily impose limitations without regard to the time and information reasonably necessary to accomplish the purposes of voir dire. Limitations in terms of time or content must be reasonable in light of the total circumstances of the case.
c. Arbitrary limitations on the form or content of questions are prohibited. This issue sometimes arises when parties to the case are racial or ethnic minorities.
i.United States v. Bear Runner, supra, was one of the highly publicized "Wounded Knee" trials. The trial judge refused to ask questions that would probe the issue of the prospective jurors' racial bias, favoring instead a broad question of whether the panel members could be fair and unbiased toward the defendant, an American Indian. The conviction was reversed because the content of that question did not sufficiently allow the exploration of the prospective jurors' racial attitudes:
ii. Other examples of "content" restrictions that were found to be unreasonable are:
iii. Mickelson v. Kernkamo, 42 N.W.2d 18, 22 (Minn. 1950): The plaintiff was employed by a railroad and was injured while on duty. The judge refused to let defense counsel inquire of prospective jurors as to any interest any had in the railroad.
iv. Hunt v. Regents of Univ. of Minn., 460 N.W.2d 28, 33 (Minn. 1990): In a medical malpractice case the judge refused to permit plaintiffs counsel to inquire about the panel members' connection with the defendant's malpractice insurers. NOTE: In this regard be aware of Minn. Gen. R. Prac. 123 regarding voir dire inquiry about insurance companies that are not parties to the case. See also, Rosenthal v. Kolars, 231 N.W.2d 285, 287 (Minn. 1975) on medical malpractice voir dire; and Leonard v. Parrish, 420 N.W.2d 629, 634 (Minn. App. 1988) in which it was held not to be an abuse of discretion for the trial judge to refuse to permit counsel to ask panel members their attitudes about the "insurance crisis."
v. Barrett v. Peterson, 868 P.2d 96 (Utah Ct. App. 1993): In the wake of pervasive "tort reform" information, it was error for the court to refuse to ask questions about that subject.
vi. State v. Evans, 352 N.W.2d 824, 826 827 (Minn. App. 1984): The trial judge criticized the lawyers for asking questions beyond the ultimate issue in the case. The appellate court noted that lawyers may go beyond the ultimate issue in an effort to ascertain jurors' competency.
d. Improper limitations on or conditions of recording voire dire. Occasionally a judge abuses his or her voir dire discretion in a procedural way apart from the actual questioning process. In State v. Jurek, 376 N.W.2d 233, 235 (Minn. App. 1985) the defendant requested that the voir dire be recorded by a court reporter. The trial judge agreed but only if the defendant agreed to pay for the making of such a record. Holding that the judge's action was an abuse of discretion, the appellate court said that a party to a case has an absolute right to have the voir dire recorded.
6. SCOPE OF VOIR DIRE
a. The scope of voir dire is almost entirely within the discretion of the trial judge:
b. The scope of inquiry is best governed by a wise and liberal discretion of the court. Reasonable latitude should be given parties in the examination of jurors to gain knowledge as to their mental attitude toward the issues to be tried, for the purpose of aiding them in striking jurors, if they are not successful in challenging them for cause. However, as a general rule, the examination of jurors on voir dire should be restricted to questions which are pertinent and proper for testing the capacity for fairness and competency of jurors.
31 Am. Jur. 121, Jury Sec. 139.
c. Any question that fairly relates to the grounds for challenge for cause in Minn. Stat. Sec. 546.10; Rule 26.02, subd. 5(1), Minn. R. Crim P.; and Rule 808(b) Minn. Gen. R. Prac. should be allowed by the trial judge.
d. Lawyers may ask only questions that directly and clearly relate to the purposes of voir dire. Thus,
e. Lawyers may not ask questions that:
i. Are designed primarily to educate or indoctrinate jurors as to theories, facts, strategies or problems in the case;
ii. Are intended or designed to predispose jurors to be in favor of or against a party, a witness or some aspect of the case, or which are likely to have that effect;
iii. Are merely arguments of the case;
iv. Are hypothetical in nature;
v. Ask the jurors to commit themselves to vote in a certain way or to take any position whatsoever (other than a neutral one) before they hear the evidence;
vii. Instruct the jurors as to the law of the case;
viii. Seek explanations from the jurors as to their understanding of the law, legal concepts, the nature of the legal system, or the scope of their duties;
ix. Merely repeat questions already asked by the judge or opposing counsel and to which clear and complete answers have been given;
x. Ask jurors to speculate as to what their reactions might be to hearing or seeing certain evidence;
ix. Invite jurors to identify with a party (or lawyer or witness) in the case;
xi. Ask jurors how certain evidence is likely to influence their verdict.

A good rule of thumb for voir dire is this: lawyers are entitled to receive information through questions designed to achieve the proper purposes of voir dire. They are not, however, entitled to give information about the facts or the issues or the parties or the witnesses or the law in the case.