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COUNSEL SHOULD BE PERMITTED TO VOIR DIRE PROSPECTIVE JURORS

Under the Federal Rules the trial court has the discretion to allow counsel to conduct voir dire.

 

“Rule 24 …

 

(a) Examination. The Court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit …the attorney …to supplement the examination by such further inquiry as it deems proper or shall submit to the prospective jurors such additional questions …as it deems proper.”

 

Aldridge v. US, 283 US 308 (1931);

 

Sellers v. US, 271 F.2d 475 (D.C. Cir. 1959);

 

Morford v. US, 339 US 258 (1950);

 

Blueth v. Denno, 313 F.2d 364 (2d Cir. 1963).

 

“Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire.” Rosales-Lopez, 451 US 182, 188 (1981).

 

See               US v. Sutton, 732 F.2d 1483 (10th Cir. 1983);

 

US v. Reeves, 730 F.2d 1189 (8th Cir. 1984);

 

Jackson v. Amaral, 729 F.2d 41 (1st Cir. 1984);

 

US v. Blanton, 719 F.2d 815, 822 (6th Cir. 1983), rehg en banc, cert. denied, 104 S.Ct. 1592 (1984) (noting trial judge must exercise discretion in determining proper method of conducting voir dire).

 

See also  Gomez v. United States, 490 U.S. 858 (1989) (holding that permitting a magistrate judge to conduct jury selection in lieu of an Article III district judge violates the defendant’s basic and fundamental trial right “to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside.”)

 

Of the federal courts approximately 51 districts have judge conducted voir dire, in 22 it is conducted by Court and Counsel, and by Counsel alone in 12. The Jury System in Federal Courts, 26 F.R.D. 409, 466.

 

Note that the Fifth Circuit has stated that while FED. R. CRIM. P. Rule 24 gives wide discretion to the trial court, voir dire may have little meaning if not conducted at least in part by counsel. The Fifth Circuit has endorsed A.B.A. procedures whereby the trial judge explains basic points of law and procedure to the venire and then permits questioning by opposing counsel.

 

See               US v. Ible, 630 F.2d 389 (5th Cir. 1980);

 

US v. Ledee, 549 F.2d 990 (5th Cir.), cert. denied, 434 US 902 (1977).

 

The need for attorney conducted voir dire is particularly acute when publicity is pervasive.

 

Silverthorne v. US, 400 F.2d 627, 637 (9th Cir. 1968).

 

“Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of jurors, trial courts must take strong measures to ensure that the balance is never weighed against the accused.”

 

The questioning of prospective panel members is perhaps the only occasion counsel will have for personal interaction with jury. It is the only occasion, save the verdict, that counsel will have the opportunity to hear from the jurors. And while the trial court may have concern for jurors challengeable for cause, counsel’s primary concern is in intelligently exercising his peremptory challenges. Courts have noted as early as 1893, that voir dire examination “is often conducted in great part by counsel whose experience has taught them exactly what are the crucial points involved in the inquiry”. US v. Barber, 21 Dist. Col. 456, 463 (1893).

 

Knowing the right buttons to push in this regard might just result in a request to conduct voir dire being granted, what will result is a fair trial and judicial economy. “It is the parties, rather then the court, who have a full grasp of the nuances and the strength and weaknesses of the case.” US v. Ible, 630 F.2d 389, 395 (8th Cir. 1980).

 

The burden may be on Defendant to demonstrate a need for voir dire conducted by counsel rather than the court.

 

People v. Butler, 162 Ca. Rptr. 913 (Cal. App. 1980);

 

State v. Allen, 380 So.2d 28 (La. 1980) [abuse of discretion standard];

 

US v. Baldwin, 607 F.2d 1295 (9th Cir. 1979);

 

Silverthorn v. US, 400 F.2d 627 (9th Cir. 1968).

 

The party requesting specific voir dire questioning bears the burden of showing a reasonable possibility of prejudice unless the case falls into one of three areas in which courts recognize the possibility of prejudice:

 

  • a case involving racial overtones,
  • a case involving matters concerning which the community harbors strong feelings,

 

  • a case involving other forms of bias or distorting influence that have become evident through experience with jurors. US v. Robinson, 475 F.2d 376 (D.C. Cir. 1973).
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