F. IMPROPER VOIR DIRE
From MN Bench Book - Trial Procedures & Practices for Judges
Improper Voir Dire
1. In General
a. Improper voir dire can deprive a party of a fair trial:
Since jurors are to decide the case solely on the facts presented at trial, pre-committing or influencing the jury on voir dire denies the non questioning party his right to an impartial jury. .
Note, 50 Minn. L. Rev. 10881092 (1966)
b. Improper voir dire invariably protracts litigation unnecessarily:
The larger interest of the trial bar as a whole, and of equally earnest litigants who await a forum for their own trials, is frustrated by such dissipation of court time. We cannot expect the legislature to provide, or the people to pay for . . . overlong voir dire exercises.
Sweet v. Stutch, 240
It is amazing that such a statement comes from a California court since it appears that the courts of that state, at least in high profile trials, set the record for unconscionably protracted voir dire.
In contemporary litigation, we simply do not have the luxury of needlessly long voir dire. There are too many cases waiting to be called for trial. Jurors are too busy to interrupt their lives for extended periods of time.
2. Particular problems
a. Questions about the law
Questions or instructions about the law are improper on voir dire. In State v. Bauer, 189 Minn. 280, 249 N.W. 40, 41 (1 933) the supreme court said:
A juror cannot be a law to himself, but is bound to follow the instructions of the court in that respect, and hence his knowledge or ignorance concerning questions of law is not a proper subject of inquiry.
The examination of jurors would be interminable if parties were allowed to take up the whole law of the case, item by item, and inquire as to the belief of the jurors and their willingness to apply it.
More recently, the court of appeals in State v. Evans, 352 N.W.2d 824, 826 827 (Minn. App. 1984) said:
Attorneys do not have the right to examine prospective jurors as to their understanding of the law to be applied in the case. It is the duty of each juror to follow the instructions of the court, and hence their knowledge or ignorance concerning questions of law is not a proper subject for voir dire.
There are two other problems with voir dire inquiries about the law. First, questions about certain rules are necessarily out of context since it is the instructions as a whole which must be followed.
Second, the law has true meaning only when it becomes operative in a factual context. That context does not exist until the end of the case. Voir dire questions about the law are thus inquiries into abstractions.
The following questions would be improper:
Q. Do you understand that the plaintiff has to prove her case only by the fair preponderance of the evidence?
Q. Do you realize that if you. have any reasonable doubt you must find my client not guilty?
Q. Even if the evidence shows that my client is equally at fault with the defendant, do you understand that the law entitles him to an award?
Q. The judge will instruct you that every driver is entitled to presume that all other drivers will exercise reasonable care. Do you have any disagreement with that presumption?
The jurors may, however, be asked if they would accept and apply the law given by the judge even if they felt the law should be otherwise. See Commonwealth v. Calhoun, 238 Pa. 474, 86A 472, 475 (1913).
b. Questions which Identify a Juror with a Party
In State v. Backus, 358 N.W.2d 93,' 96 (Minn. App. 1984) a lawyer asked on voir dire: "If you were the defendant would you want yourself on the jury?" The trial court ruled that such a question was improper. The appellate court agreed, saying:
The trial court properly excluded this question as improperly requiring the juror to identify with one side.
Another way this question is framed is as follows in a case brought on behalf of a minor:
Q. Are you in such a frame of mind that if Melinda was your daughter you could be fair to her?
Sometimes the invitation to identify is not so blatant but is buried in the factual proposition. In a case involving a car collision with a deer, the plaintiff's lawyer invited identification with the legal standard of the careful person with this question:
Q. Is there anyone on the panel who, if you saw a deer while you were driving, would continue at the same rate of speed?
This question probably also subtly commits the jurors to a legal position as to what the careful and prudent driver would be required to do.
c. Questions About Settlement Efforts
Q. Now you understand that the plaintiff tried to settle this case with the defendant but was not able to do so. The fact that the plaintiff had to start a lawsuit will not influence your verdict, will it?
See Tellefsen v. Key System Transit Lines, 322 P. 2d 469, (Cal. App. 1958).
d. Questions that Suggest that the Jury Should Return a Large Verdict
Q. Would you feel that we can't compensate this lady fully because if we do we will come out with a great big verdict?
See Goldstein v. Fendelman, 336 S.W.2d 661(Mo. 1960).
It is permissible, however, to ask whether any juror has a philosophical problem with awarding compensation, even if that results in a large verdict. See Temperley v. Sarrinoton’s Admr., 293 S.W. 836, (Ky. 1956).
e. Hypothetical Questions that Precommit or Improperly Influence the Verdict
Q. How would you decide if the evidence were equally balanced?
See Chicago & A.R. Co. v. Fisher, 14 III. 614, 31 N. E. 406 (1892).
Q. If the motorman, seeing the child's danger, did all he could to stop the car, would you find for the defendant if the court instructed the jury that if the motorman did all he could to stop he would have no legal liability?
See Tampa Electric Co. v. Bazemore, 85 Fla. 164, 96 So. 297 (1923).
Q. In a case where the plaintiff, who is a young man and a lawyer, took a promissory note from the defendant, who is an old man and a farmer, and the defendant thought he was signing an agency agreement, would you find in favor of the plaintiff or the defendant?
See Woolen v. Wire, 110 Ind. 251, 11 N.W. 230, (1887).
Q. If it were shown that the decedent, as he walked along, had a cap pulled down over his face, would that prejudice you in any way?
See Sherman v. William M. Ryan 8 Sons, 126 Conn. 574, 13 A.2d 134 (1940).
f. Irrelevant Questions
Some questions appear to be proper but in fact are irrelevant.
Q. [In a rape case] Can you tell me the feelings you have about the crime of rape?
The issue is not what feelings the juror has but rather, whatever the feelings, can the juror be fair?
Any "what are your feelings?", "What is your attitude?," "What do you think about ?" are not only irrelevant but also invite potentially panel tainting answers.
It is, of course, proper to ask more general questions to explore whether or not a panel member has any attitudes, feelings or opinions about a subject and then to find out whether the member could be fair. But since the rule is that a juror must set personal opinions aside, an inquiry directly into the content of any such opinion is irrelevant.
Q. Has anyone heard or read any comments or opinions or criticisms of the legal system?
This is all right. But the follow up is improper.
Q. What have you read or heard?
The content of the information received is not relevant. What is relevant is whether the information prevents the jurors from being fair.
g. Questions that Distort the Jury's Role
Q. Are you the kind of person who, if you saw the plaintiff on the street after the trial, could look her in the eye and say, "We made a fair decision?"
Jurors do not have to defend their verdicts or explain them or answer questions about them or make any comment whatsoever about them. This question seems to suggest otherwise.
Q. Do you understand that at the end of the trial you will have to decide either that he's guilty or that he's innocent?
First of all, there is the third option of unable to reach a verdict. Secondly, the issue is guilty or not guilty; jurors do not decide "innocence." The question distorts the jury's role.
Q. Do you think you are the type of person who if you heard two versions could decide who's lying and who's telling the truth'?
The problem with the question is that credibility is not solely the product of lying or truth telling. In fact, it is more the product of mistake or faulty or incomplete perception or recall in litigation situations. Thus, the question distorts the jury's function.
h. Questions that are Prefaced with Speeches or Explanations
Q. Now you realize that the law cannot bring little Billy back to life and the only thing we can do is give monetary compensation for the grief of this loss. Would anyone hesitate to award such compensation?
Q. The reason I am asking you this question is that I expect the evidence to . . . .
The jury does not need to know why a question is being asked.
It is not proper to preface questions on voir dire with:
descriptions of anticipated evidence
summaries of theories in the case
- comments on the opponent's evidence
discussions of the law
speeches of any sort
One more example, which would seem to be improper:
Q. The evidence in this case will show that the defendant used a .45 caliber Glock. Has anyone on the panel had any experience with such a weapon?
Why is the preface necessary? Why not just ask the question? Only the question is proper voir dire.
The following questions are from the voir dire in a second degree murder case:
Q. Do you agree that the verdict should be unanimous?
Objection: Irrelevant Sustained
The jurors swear to follow the law whether they agree with it or not. Thus, it is irrelevant as to whether or not they agree that the verdict should be unanimous.
Q. Have you ever seen someone so intoxicated that he or she was not responsible for his or her own actions?
This question calls for an impermissible conclusion and tends to indoctrinate the jury. It should be disallowed.
Q. In your questionnaire you said there is racism in the legal system. What did you mean?
A. Well, there has been a study . . .
[Judge interrupts and disallows the answer.]
Attorneys can ask about jurors' attitudes and opinions but to allow too much detail is dangerous. There is a risk of tainting the panel. Here the "study" might well have done that.
Q. As a member of the NRA, tell us some of the general principles you agree with.
[Judge interrupts and disallows the answer.]
It is not necessary to hear the principles. The focus is on whether or not any such principles, whatever they are, might have created attitudes and opinions that will render the juror less than neutral.