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START OF TRIAL AND VOIR DIRE - MN Bench Book - Trial Procedures & Practices for Judges
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START OF TRIAL AND VOIR DIRE

From MN Bench Book - Trial Procedures & Practices for Judges

1. INTRODUCTION OF CASE

NOTE: Once counsel, parties and prospective jurors are present the judge should start the proceedings by stating:

Counsel, are you ready to proceed?
The name of this case is State of Minnesota v. _______________________________
The Court administrator will now swear the entire jury panel.
[To the jury panel] Please stand and raise your right hands.
(Court Administrator administers Oath)
Jurors First Oath: "You do swear that you will truthfully answer all questions about your qualifications to serve as a juror, so help you God?"


2. INSTRUCTIONS TO THE JURY PANEL BEFORE EXAMINATION

Good morning, ladies and gentlemen. My name is Judge Pendleton and I will be presiding over the trial of this case.

I want to welcome you here today as prospective jurors. I know that for many of you this may be your first experience as a juror, and you may be somewhat apprehensive. Please try not to be. Jury service is a great responsibility, and part of my job is to assist you in understanding and performing this service.

Sitting as a juror is a service that should command your pride. No higher honor or duty can be imposed upon any citizen than sitting in judgment upon the facts that may be presented during a trial. At no other time does our government give a private citizen such a direct role in the administration of justice as when those citizens sit as jurors.

CRIMJIG 1.01B

It is important that you be able to see what is happening here and to be able to hear the questions being asked. If any of you have difficulty hearing or understanding, please let me know now so that we can make arrangements to help you. Does anyone have difficulty hearing or seeing and need any assistance? Does anyone have any trouble understanding what I am saying?

This is a criminal case. The (County Attorney for Anoka County / Anoka County Grand Jury) has filed a (complaint/indictment) with this court which alleges that on or about the ____ day of ___________, 20___, while in the City _______________, County of Anoka, the Defendant, _______________________________________, committed the offense(s) of:

READ CHARGING PORTION OF COMPLAINT

Count I ______________________________________________________________________


Count 2 ______________________________________________________________________


Count 3 ______________________________________________________________________


To this (indictment) (complaint) the defendant, _________________________ has plead not guilty. This plea denies the charge(s) that has been made against defendant and places upon the State of Minnesota the burden of proving defendant's guilt beyond a reasonable doubt.

The State is represented by ______________________________, Please rise,
The defendant is represented by __________________________, Please rise,
Would the defendant please rise.

There are some general instructions of law that apply to all criminal cases. I want you to bear these in mind because you may be asked in the questioning which will take place in a few minutes whether you will accept and follow the rules of law given you, and you should have these instructions in mind when you answer that question.

The (indictment) (complaint) is not evidence and it creates no inference or presumption of guilt. You should not permit yourself to be prejudiced against defendant because (an indictment) (a complaint) has been filed against the defendant, (or because the defendant may have been arrested,) or because the defendant has been placed on trial. The defendant is presumed innocent. In order to find the defendant guilty, the State must prove guilt. The defendant does not have to prove innocence. The presumption of innocence remains with defendant unless and until the defendant has been proved guilty beyond a reasonable doubt by evidence admitted in this trial.

To insure that both defendant and the State receive a fair trial by an impartial jury, it will be necessary for me and for counsel for each party to ask you certain questions that you must answer under oath. Please do not take offense at any question you are asked. Your contribution to this important and serious matter is best assured by your honest answers to those questions. Some of you who are called to be questioned will be excused from serving on the jury. If you are excused, it does not mean that anyone doubts you are a fair person.


OPTIONAL - IF A JUROR QUESTIONAIRE IS TO BE USED ADD THE FOLLOWING: In order to minimize any embarrassment or invasion of privacy that may result from the necessary questions, we are going to begin the questioning by asking you to fill out a written questionnaire. In just a moment, you will be escorted back to the jury assembly room where the bailiff/clerk will pass out a ______ page questionnaire to each of you. Please fill this form out completely; remembering that you are answering these questions under the oath you took at the beginning of this hearing. After you have completed and signed the form, please give it to the bailiff who will bring all the forms to the court for review by the attorneys and me. After we have picked a jury, we will destroy all copies of the questionnaires except one sealed copy of the answers for those of you picked to serve on the jury. (Bailiff will now escort you back to the jury room)

3. START OF VOIR DIRE

a. The Jury Selection Process

We are now ready to begin the process of selecting members of the jury who will hear and decide the facts in this case. We will select these jurors in a procedure called voir dire: In plain English, jury selection. The clerk will draw the names of the jurors who are to be questioned regarding whether they should sit on this case. When your name is called, please come up to the front and the bailiff will direct you to a seat in the jury box. If your name is mispronounced, we apologize and ask that you state the correct pronunciation as you come forward. When all of the names have been drawn, then the Court and the lawyers will ask you some questions.

(COURT ADMINISTRATOR DRAWS NAMES.)

  • Before 1st name is drawn explain pool where to sit:
    • Felony: 21 = (12 + 1 alternate) + (3 & 5 peremptory challenges)
    • Misd and Gross Misd: 15 = (6 + 1 alternate) + (3 & 5 peremptory challenges)
Note: First degree murder: rule 26.02 subd 6; state = 9; defense = 15

b. The Court’s Voir Dire – Introductory Remarks

Ladies and gentlemen, your contribution to the important and serious matter at hand is best assured by your full and free answers to the questions asked during the jury selection process. It is critical that your answers be honest and truthful. You are encouraged to volunteer information. This will shorten the whole process.

I will ask you questions about your qualifications to sit as jurors in this case. When I am done, the attorneys will ask additional questions. I hope that you will not take offense at any question you may be asked. Some of you will be excused from serving on the jury. If you are excused, it does not mean that anyone doubts that you are a fair person.

STATE TO THE ENTIRE PANEL:

Those of you not yet called are asked to listen closely to all the proceedings until a jury is finally empanelled. This is because you might be called upon to replace a potential juror who has been excused. It will save time if we do not have to repeat all the questions and you are prepared to offer your answers.

STATE TO THE JURY PANEL:

If your answer to any of the questions is “yes,” please raise your hand. If you would have difficulty responding to a particular question or if your answer to any question by me or the attorneys would be personal or sensitive or have an adverse effect upon another juror, please let me know before answering and you can answer outside the presence of the other jurors.

In answering questions, be as candid and truthful as possible. We are not trying to pry unnecessarily into your personal lives. We are merely seeking information to select a fair and impartial jury. We all have attitudes, beliefs, and life experiences that may be important.

c. Questions by the Court

1. Would anyone have difficulty accepting, or following, the rule of law that:
a. The defendant is presumed to be innocent.
1) He does not have to take the witness stand and he does not have to call any witnesses or present any evidence.
b. The state has the burden of proof.
c. The state must prove its case beyond a reasonable doubt. I will define the concept of reasonable doubt later, but please understand, it is the highest burden of proof imposed by our system of justice.
d. The defendant does not have to prove his innocence
e. The charges I have read are not evidence, and they create no inference of guilt.
f. The jury must be unanimous in its verdict.
g. Does anyone feel that the defendant must be guilty of something – otherwise he would not have been charged or placed on trial?
2. Leave Blank for future questions
3. Do any of you know:
a. The prosecuting attorney, _______________________________
b. The defense attorney, __________________________________
c. The defendant, ________________________________________
4. Are any of you presently involved in any matter where the County/City Attorney's Office is also involved? Have any of you been so involved in the past? Do any of you have an ongoing relationship with the County/City Attorney's Office?
5. Do any of you know:
a. anything about this case?
b. have you read about it or know about it from any source?
c. Are you familiar with the location involved?
6. Witness List: I am now going to read you a list of people who may be called to testify as witnesses in this case or whose names might be otherwise referred to.

There are _____names.

Please listen carefully. As I read each name, please let me know by raising your hand, whether you know any of these people or are related to them. We may then ask you further questions about your knowledge or relationship. The names are as follows:

READ WITNESS LIST
7. This trial is expected to last approximately ________days/weeks/months.
8. Does anyone:
a. Have a hearing or seeing problem? (use hearing impaired devices or real time?
b. Do any of you have any trouble hearing and understanding what I am saying?
c. Do any members of the panel suffer from any physical impairment that would prevent or make difficult your service as a juror here today?
d. Do any of you have a pressing family or business concern that would make it hard to give this case your full attention? By this question I want to know if there is any situation in your personal life which so occupies your mind that you can't give your full attention to this case here today.
e. How many of you are smokers; there is no smoking in the deliberation room; However, in the event any of you should desire to smoke, arrangements may be made with the bailiffs for smoking breaks. Does that create a problem for anyone.
9. I will now ask some questions concerning you or your family. I use the word family in a rather broad sense to include mother -- father -- spouse -- children -- brothers or sisters -- in laws --any relative with whom you have regular contact.
a. Have you or a member of your family been a plaintiff or defendant in a civil case?
b. Have any of you or a member of your family ever been charged with a crime other than minor non-alcohol related traffic violations? (such as traffic or parking tickets; NOTE: a DWI is NOT a minor traffic violation!)
c. Has anyone ever been a witness in a criminal or civil case? Have any of you ever testified in a criminal prosecution? In a civil case?
10. Have any of you had prior jury service with this panel? For those of you with prior jury experience with this panel, how many of you have sat on a criminal case? How many of you have sat on a civil case? (see questions a – e below)
11. Other than service with this panel, have any of you ever served on a jury before?
a. Criminal or Civil? – Different burden of proof;
Criminal = Proof beyond a reasonable doubt
Civil = preponderance of evidence
b. When and where?
c. Type of case?
d. Did you reach a verdict? (don’t allow attorneys to ask what the verdict was)
e. Are you satisfied it was a fair and just verdict?
12. Are any of you related to or do you have a close personal or business relationship with any other members of the jury panel? What I am concerned about here is that sometimes when juries are deliberating there will be disagreements between the jurors as to what their verdict ought to be. Looking around at those who are seated in the jury box with you, are there persons who because of a business or personal relationship it would be difficult for you to debate and discuss vigorously your verdict in this case?
13. Do any of you have immediate members of your family who work in the field of criminal justice or law enforcement? For Example, a police officer, prosecuting attorney, correctional officer, or some similar type of occupation?
14. Is there anyone among you who has strong views for or against police officers? Either against them as a result of their law enforcement work or sympathy for them as a result of their law enforcement work?
15. Do any of you feel that the testimony of a police officer or other law enforcement officer is entitled to either more weight, or less weight, merely because he or she is a police officer?
16. Has anyone ever served as an M.P. in the military?
17. Have you or any member of your immediate family had any unsatisfactory or upsetting encounters with law enforcement officers which would cause you to have difficulty in accepting or believing any testimony such an officer might give during this trial?
18. Have any of you or the immediate members of your family ever been the victim of a crime? (who, when, where, type of crime, arrest, disposition, satisfied).
If yes, is there anything about that experience that would make it difficult for you to be a fair and impartial juror in this case? (or leave it to the attorneys to follow up)


IF DOMESTIC OR SEXUAL ASSAULT IS AN ISSUE IN THE TRIAL, QUESTION EACH JUROR INDIVIDUALLY, OUTSIDE THE HEARING OF OTHER JURORS OR IN CHAMBERS:

If your answer to any of the following questions is YES, raise your hand and we will talk with you privately, outside the presence of your follow jurors.

a. Have you, any member of your family or close friend ever been physically or sexually abused?
  • If yes, What was the relationship of the person who abused you, how old were you, and was the abuse reported to someone?
b. Have you, any member of your family or close friend ever been charged with physical or sexual abuse or accused of abusing someone?
c. Have you ever had a job where you were required to report any signs of physical or sexual abuse of children or young people?
  • If yes, did you ever have to report abuse?
d. Have you ever had a job where you worked with children or young people?
e. Do you, any member of your family or close friend work in a hospital E.R.?
  • If yes, has this person ever mentioned seeing children who were physically or sexually abused?


IF THE CASE INVOLVES A DWI OR OTHER ALCOHOL RELATED OFFENSE:
a. Is there anyone among you who totally abstains from consuming alcoholic beverages either for medical or personal reasons?
b. Is there anyone among you who has any bias concerning someone who consumes alcoholic beverages? By that I mean a strong feeling against that person for consuming alcohol that you would not be able to put aside in reaching a verdict?
19. Is there anyone among you who has strong views concerning someone who has been arrested? Either against them because of their arrest or sympathy for them as a result of the arrest?
20. Mobile electronic devices and Internet Research During Trial:
a. How many of you own a mobile electronic device such as a blackberry or iPhone?
b. How many of you have access to the internet at home or elsewhere?
c. How many of you regularly access Social Network sites such as My Space, Facebook or Twitter?
d. During this trial you will be strictly prohibited from conducting any type of internet research on the parties, attorneys or issues involved in this case. You will also be prohibited from posting information about the trial on Social Network sites such as My Space, Facebook or Twitter.
e. Any violation of that prohibition would jeopardize the entire trial; could result in a mistrial and the parties would have to start all over with a new jury.
f. Is there anyone here that would not be willing or able to respect and comply with that prohibition?
21. Is there anything about the nature of the charge(s) in this case which causes any of you to have some doubt as to whether you could give both sides a fair and impartial trial?
22. Optional - Photos – Because of the nature of the charges you may be asked to view photographs that are of a graphic nature (i.e. autopsy or crime scene photos); would anyone have difficulty viewing such photos.
23. If selected as a juror, each of you must decide this case solely on the evidence produced in court and the law as I give it to you, and not on the basis of passion, prejudice or sympathy? Does that create a problem for anyone?
24. Will anyone have a problem following the law as I give it to you, even though you think the law is or should be different? (Example -- black is white).
25. Members of the jury panel, what I want each of you to do is take a moment and search your mind and conscience, and decide if there is any reason, bias or prejudice you can think of, that would prevent you from serving as a fair and impartial juror in this case?
26. Before the attorneys ask their questions, I would like each of you to give a thumbnail sketch of your background: (use document camera for easy display of questions; or write questions on an easel; or give jurors individual sheets)
Name; City; Occupation; Educational background; Marital Status;
Spouses' occupation, if applicable;
Children - age and occupation, if applicable.
WHEN DONE, TURN QUESTIONING OVER TO THE ATTORNEYS

Ladies and gentlemen, each attorney now has an opportunity to ask you additional questions and to follow up on the answers given to my general questions.

The attorneys have been instructed not to repeat the questions I have already asked you.

(Defense attorney goes 1st) Mr/Ms. ___________________________

(State goes 2nd) Mr/Ms. ________________________

4. FINAL SELECTION PROCESS

a. After attorneys finish their questioning
1. First, defense (pass for cause)
2. Second, State (pass for cause)
b. Challenges for cause, (if not made during questioning - rule 26.02 subd 5)
(Get list of challenged jurors, continue outside presence of jury panel)
AFTER ALL ATTORNEYS HAVE PASSED FOR CAUSE:

Members of the jury panel, at this point in the proceedings we have determined that you are all qualified to serve as jurors on this case and are not subject to challenge or excuse for cause. However, our law provides that each party in a case has the right to what our law calls preemptory challenges. A preemptory challenge means that a party may excuse or strike a juror without having to give a reason or explanation. If you notice, there are (21/15) prospective jurors in the jury box. Because only (13/7) of you can be selected to sit on this jury, 8 of you must, by operation of law, be excused. That would leave us with the necessary number of jurors – [12/6 and 1 alternate].

This process may take awhile, so as the attorneys are reviewing their lists, feel free to stand up and stretch, you may also talk among yourselves, as long as you don’t discuss anything about this case.

Clerk hands jury list to defense attorney:

1. Defense begins and strikes first; Defense and State alternate strikes.
2. Defense has five preemptory challenges; State has three.

Bailiff hands list to judge to check, if correct, judge hands list to clerk:

Members of the jury panel, the Clerk will read the names of those of you who have been selected to sit as jurors in this case.

CLERK READS OFF THE NAMES

Those of you who have not been chosen are excused at this time. Thank you for your time and attention. You may get your coats and other belongings and leave the courtroom. The Court Administrator will call you if and when you need to return.

WAIT FOR EXCUSED JURORS TO LEAVE

(THIS IS USUALLY A GOOD PLACE TO BREAK FOR THE DAY. THE FOLLOWING LONG FORM INSTRUCTION SHOULD BE READ BEFORE SENDING THE JURORS HOME. FOR THE BALANCE OF THE TRIAL YOU CAN READ EITHER THE LONG FORM OR SHORT FORM VERSION BEFORE BREAKS AND RECESSES – see below)

CRIMJIG 2.08 (Long Form: added in 2009)
CAUTIONARY INSTRUCTION AT FIRST RECESS OR
ADJOURNEMENT FOR THE DAY AND DURING
DELIBERATIONS IF NOT SEQUESTERED

We will now (recess for ___ minutes) (adjourn for the day). I want to remind you of the instructions I gave you earlier regarding your conduct as jurors. Please these in mind each time we recess and when we adjourn for the day. While I will try to repeat the instructions to help you remember, I may not always do so. This does not mean they do not apply.

Do not let outsiders influence you.

Do not discuss this case with other jury members during the trial.

You will have plenty of time to do this at the end of the trial, once you have all the evidence, and I have sent you to the jury room with my instructions and the verdict forms.

Do not talk to anyone involved in this case, the defendant, the lawyers, or the witnesses.

If anyone tries to discuss this case with you outside the courtroom, report this to me.

When you go home during the trial, do not talk to your family, friends, or others about the case. You may tell them you are a juror on a criminal case and that is all that you should tell them. Do not report your experiences as a juror while the trial and deliberations are going on. Do not e-mail, blog, tweet, text or post anything to your Facebook, MySpace, or other social networking sites about this trial. Do not visit any “chat rooms” where this case may be discussed.

Do not read or listen to news reports about the case.

Do not do your own investigation. Do not ask people about this case. Do not visit any of the locations mentioned in the trial. Do not research anything about the case, including the issues, evidence, parties, witnesses, location, or the law, through any form of written, print, electronic or Internet media..

Keep an open mind until you have heard or seen all of the evidence.

Remember you cannot consider anything you hear or learn about this case outside this courtroom.

If you do not follow these instructions, you may jeopardize the trial. This may require the whole trial to be redone and we will have to start over.


(option 2 - short)
Cautionary Instruction before Lunch and before Every Recess

Please remember, while court is in recess you must not talk to anyone who is involved in this case nor shall you discuss the case among yourself. During the recess you may see the attorneys, parties, witnesses or myself in the hallways or outside. Don’t take offense if we don’t stop to say hello or talk with you. Everyone involved in this case has been ordered to have no contact or communication with any member of the Jury. Any violation of that order could jeopardize this trial. This prohibition shall continue until a verdict has been returned.


INTRODUCTION AND ADMINISTRATION OF OATH TO SELECTED JURORS

'(Note: As a practical matter, jury should not be sworn immediately following empanelment if the trial is not to commence until the following day. This allows the court the freedom to add a panel member if something unforeseen should arise with an empanelled juror after empanelment but before trial commences.)

Ladies and gentlemen, the right to a jury trial dates back over 700 years when it first began in England. The duty and obligations you are about to accept are very solemn ones. Out of respect for the oath you are about to take, you and everyone in the courtroom will rise while you are sworn in.

CLEARK SWEARS THE PANEL

"You each do swear that, without respect of persons or favor of any man, you will well and truly try, and true deliverance make, between the State of Minnesota and the Defendant, according to the law and the evidence given you in court. So help you god."


OPTIONAL: HAVE JURORS REPOSITION THEMSELVES; REMEMBER YOUR SEATS;

OPTIONAL: OUTSIDE PRESENCE OF JURY: Jeopardy attaches after the jury is sworn. The court may advise Defendant, on the record, that if the Defendant absents himself from trial or if Defendant is late to trial, the trial will start and continue without him. IF YOU ARE IN A COURTROOM WITH AN ELECTRONIC EVIDENCE DISPLAY SYSTEM – DISPLAY THE FOLLOWING INSTRUCTIONS ON THE MONITORS