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Exercising Attorney Voir Dire

By Angela Sonico

The ability of attorneys to question prospective jurors is invaluable to ensuring a fair and impartial jury panel in both civil and criminal cases. At the same time, judges must carefully preside over the voir dire process so that valuable court time is not wasted and the privacy of jurors is not unnecessarily invaded.

The objective of this article and self-study test is to review the rules of attorney voir dire in jury trials. Readers will learn about the restoration of attorney voir dire in criminal cases in 2001; the differences between voir dire in criminal and civil cases; and the permissible scope of examination of prospective jurors.

Before the June 6, 1990 enactment of the Crime Victims Justice Reform Act, or as it is popularly known,Proposition 115, it was proper for attorneys to conduct voir dire in both criminal and civil trials. Proposition 115 greatly restricted voir dire by counsel in criminal cases, placing the task of conducting voir dire substantially on the trial court. Attorney voir dire in civil cases remained unchanged. See Code of Civil Procedure Section 222.5.

Under Proposition 115, the judge could permit counsel in criminal cases to ask supplemental questions, but only if counsel established "good cause" for such additional questions. Even if good cause was shown, the judge could ask the additional questions himself rather than allow the attorneys to ask them. See former Code of Civil Procedure Section 223.

Many concerns were raised regarding this two-track system, allowing full attorney voir dire as a matter of right in civil cases but largely eliminating it in criminal trials. Both prosecutors and defense attorneys pointed out, for example, that the parties know the nuances of a case better than the judge and can thus ask better questions; jurors are sometimes intimidated by judges and are more likely to answer questions candidly posed by lawyers; and that without attorney voir dire, jury selection becomes erratic due to lack of information about jurors' biases and conflicts of interest. Assem. Comm. Pub. Saf. Analysis, AB 2406 (1999-2000 Reg Sess) April 4, 2000, pp 2-3.

Thus, in July 2000, with the support of the Attorney General, California Attorneys for Criminal Justice, California District Attorneys Association, California Public Defenders Association, and the Los Angeles County District Attorney, the Legislature passed AB 2406, which revised Code of Civil Procedure Section 223 and once again expressly gave parties the right to have their counsel conduct voir dire in criminal cases. The governor signed the bill, and it became effective Jan. 1, 2001. 2000 ch 192, Section 1 (AB 2406).

Attorneys presently have the right in civil and criminal cases to personally voir dire prospective jurors. There are some differences, however, between attorney voir dire in criminal and civil trials.

Under the new system, the judge must conduct the initial examination of the prospective jurors. This is the stage when the judge asks the standard "board" questions regarding occupations, prior jury service, etc. The judge also asks questions that specifically address items of concern regarding the present case, like attitude towards law enforcement and whether the prospective jurors have been victims of crimes, as well as any additional questions requested by the parties. See Code of Civil Procedure Section 223.

"Upon completion of the court's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors." Code of Civil Procedure Section 223. No showing of good cause is needed to allow attorney voir dire, which differs from the Proposition 115 system.

Unlike the pre-Proposition 115 system, the right to attorney voir dire in criminal cases is limited: "The court may specify the maximum amount of time that counsel for each party may question an individual juror, or may specify an aggregate amount of time for each party...." Code of Civil Procedure Section 223.

Another important limit in the right to attorney voir dire in criminal cases is that "[e]xamination of prospective jurors shall be conducted only in aid of the exercise of challenges for cause." Code of Civil Procedure Section 223. This is significant because there are only a limited number of reasons that a juror can be excused for cause, including actual or implied biases, yet jurors may be excused through peremptory challenges due to an almost unlimited number of reasons. The scope of permissible questioning is definitely narrower when questions must relate to challenges for cause than if they relate to exercise of peremptory challenges.

Voir dire in criminal cases must occur where practicable in the presence of the other jurors even in death penalty trials. Code of Civil Procedure Section 223. Nonetheless, when asking questions about sensitive issues such as jurors' past sexual victimization or abuse, judges are allowed to conduct sequestered voir dire. California Rules of Court, Standards of J Admin 4.30(a)(3). A criminal defendant has the right to be present during all phases of voir dire, including sequestered portions, but counsel in conjunction with the defendant can, and in the area of sequestered voir dire, nearly always does, waive the right. See People v Marks, 152 Cal.App.4th 1325 (2007).

Lastly, California Rule of Court 4.200 mandates that trial courts hold a pre-voir dire conference in criminal cases at some point before jury selection begins. Regarding the voir dire process, judges must determine at the conference "[t]he areas of inquiry and specific questions to be asked by the court and by counsel and any time limits on counsel's examination." California Rule of Court 4.200(a)(5). At the pre-voir dire conference, the attorneys should tell the judge what questions they would like the judge to ask, and the judge should tell the attorneys how much time they will be allotted to ask their own questions.

Civil voir dire by attorneys is similar in many respects with procedures employed in criminal cases. Some important differences do exist.

As with criminal cases, the judge conducts the initial examination of the prospective jurors. "Upon completion of the judge's initial examination, counsel for each party shall have the right to examine, by oral and direct questioning, any of the prospective jurors...." Code of Civil Procedure Section 222.5. Also as with criminal cases, the judge is allowed to set reasonable and nonarbitrary time limits on the duration of the attorney's voir dire. See Code of Civil Procedure Section 222.5 ("[s]pecific unreasonable or arbitrary time limits should not be imposed").

One important difference relates to the scope of the permissible examination. Unlike criminal cases, the lawyers are allowed to question jurors to assist them in making both challenges for cause and peremptory challenges. Code of Civil Procedure Section 222.5.

Another difference is that "[i]n civil cases, the court may, upon stipulation by counsel for all the parties appearing in the action, permit counsel to examine the prospective jurors outside a judge's presence." Code of Civil Procedure Section 222.5. Voir dire outside a judge's presence rarely occurs because all the parties will seldom agree, and, even if they do, the judge will almost always want to be present to make sure that the attorneys properly conduct the voir dire.

Regarding the pre-voir dire conference, although courts should conduct this conference, it is not mandatory in civil cases. California Rules of Court, Standards of J Admin 3.25(b), provides: "Before the examination the trial judge should, outside the prospective jurors' hearing and with a court reporter present, confer with counsel, at which time specific questions or areas of inquiry may be proposed that the judge in his or her discretion may inquire of the jurors." This conference is usually conducted at the trial management conference.

Because the attorneys' questions in criminal cases must relate to their exercise of challenges for cause, both judges and lawyers must be fully conversant with what constitute valid for-cause challenges. Challenges for cause, which apply to both civil and criminal trials, fall within three categories: general disqualification, implied bias, and actual bias. Code of Civil Procedure Section 225(b).

General disqualification includes not being a resident of the county, having been previously convicted of a felony, and having insufficient knowledge of the English language. See Code of Civil Procedure Section 203(a). Implied bias includes being related to parties or witnesses in the case and having an unqualified opinion based on knowledge of the facts of the case. See Code of Civil Procedure Section 229. Actual bias occurs when a juror's state of mind "will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." Code of Civil Procedure Section 225(b)(1)(C).

The Standards of Judicial Administration do a good job of recommending rules and procedures to be followed in both civil and criminal cases regarding voir dire. Both general advice and case-specific materials are provided.

For example, the Standards for both civil and criminal trials state that "the trial judge should not permit counsel to attempt to precondition the prospective jurors to a particular result or allow counsel to comment on the personal lives and families of the parties or their attorneys." California Rules of Court, Standards of J Admin 3.25(f), 4.30(c).

In criminal cases, the Standards provide useful examples of questions that judges should ask prospective jurors, including their thoughts regarding the "fact that the defendant is in court for trial, or that charges have been made against (him)(her), is no evidence whatever of (his)(her) guilt," and that if "the evidence does not convince you of the truth of the charges beyond a reasonable doubt, the defendant is entitled to a verdict of not guilty." California Rules of Court, Standards of J Admin 4.30(b)(15).

In civil cases, the Standards set forth helpful general questions for the judge to ask such as "Has anyone ever sued you, or presented a claim against you or, to your knowledge, against any member of your family, a close friend, or anyone with whom you have a significant personal relationship, in connection with a matter similar to this case?" and "Are you or, to your knowledge, is any member of your family, a close friend, or anyone with whom you have a significant personal relationship presently involved in a lawsuit of any kind?" California Rules of Court, Standards of J Admin 3.25(b)(14), (15). The Standards also provide good questions to ask in personal injury and eminent domain cases. California Rules of Court, Standards of J Admin 3.25(b)(18), (d).

In both criminal and civil trials, "[w]ithout an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled." People v Roldan, 35 Cal.4th 646 (2005). Trial courts have great latitude in determining what questions should be asked on voir dire. Absent an abuse of discretion, a trial court's decision to permit or not permit questioning will not be disturbed on appeal. People v Earp, 20 Cal.4th 826 (1999).

As suggested by Hon. Eileen C. Moore, a Court of Appeal justice in Santa Ana, "however a particular judge approaches voir dire, significant judicial vigilance is necessary to guard the integrity of the system by assuring a complete and thorough jury selection. Jurors take an oath to answer questions accurately and truthfully, and the judge must try to make sure they do so...." No matter what a judge's personality or personal style is, an atmosphere of openness and fairness must be created so that jurors are forthcoming with responses. Justice Moore recommends that judges ask open-ended questions, followed-up by other questions, "[e]ven if the question does not elicit a complete explanation, it at least sends a message that the judge is not interested in one-word, halfhearted or hasty answers." Moore, A Judge Needs to Establish Openness, Fairness in Court, Los Angeles Daily Journal, March 9, 2001, p 6.

Angela Sonico is a deputy district attorney with San Bernardino County.

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