Voir Dire: More Case Cites and Summaries

Szwak, David A.

Voir Dire: More Case Cites and Summaries

Postby Szwak, David A. » Wed Oct 05, 2005 10:02 pm

Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently. J.E.B. v. Alabama, ex rel, T.B., 114 S.Ct. 1419, 1429 [1994]. The voir dire process is left to the sound discretion of the trial judge. Morgan v. Illinois, 504 U.S. 719, 729-730, 112 S.Ct. 2222, 2230 [1992]. Voir dire serves the dual purposes of insuring selection of an impartial jury and in assisting counsel in exercising peremptory challenges. Mu Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899 [1991]; United States v. Thomas, 116 F.3d 606 [2d Cir. 1997]; Contreras v. State, 915 S.W.2d 510 [Tex. App.], reh. overruled, [1995].

In many courts, the local rules require the parties to submit proposed voir dire questions along with the pretrial orders. Even if not specified by local rule, the parties should prepare proposed questions for court to submit to the prospective jurors after the court makes the initial voir dire. Fed.R.Civ.Proc. 47[a] [A party may propose additional questions to supplement court-conducted voir dire]. The party should submit objective questions that probe for potential bias and prejudice. U.S. v. Quiroz-Hernandez, 48 F.3d 858, 869 [5th Cir.1995] [Proposed questions must be reasonably necessary to enable exercise of challenges and be pertinent to inquiry]; Pitasi v. Stratton Corp., 968 F.2d 1558, 1563 [2nd Cir.1992] [plaintiff submitted questions concerning bias and whether panelists had been employees of defendant]; U.S. v. Phibbs, 999 F.2d 1053, 1071-72 [6th Cir.1993] [Questions directed at personal habits and activities of panel members not necessary to select a fair-minded jury]; King v. Jones, 824, F.2d 324, 326 [4th Cir.1987] [Argumentative, nonobjective questions not necessary to proper voir dire by court]. The court has no duty to sort through a collection of argumentative questions to determine which ones should be asked. King v. Jones, 824, F.2d 324, 326 [4th Cir.1987] [Appellant submitted 90 argumentative questions].

In United States v. Bear Runner, 502 F.2d 908, 911 [8th Cir. 1974], the court opined: Unquestionably one of the most effective means of ensuring impartiality is the voir dire proceeding during which questioning will expose any latent bias entertained by prospective jurors. Such exposure is necessary if the parties are to be expected to exercise their challenges in an intelligent and informed manner. Justice White recognized this in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 [1964]: The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. Id. at 218-219, 85 S.Ct., at 835.

It cannot be doubted that we are dealing with a right that is of utmost importance to the integrity of the jury system, for the opportunity to ascertain potential racial bias of venire men is basic to the fundamental fairness of our system. Chief Justice Hughes observed in Aldridge v. United States, 283 U.S. 308, 315, 51 S.Ct. 470, 473, 75 L.Ed. 1054 [1931] that, "[n]o surer way could be devised to bring the process of justice into disrepute" than to "permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred." U.S. v. Diggs, 522 F.2d 1310 [C.A. D.C. 1975].

The legal system vests a trial judge with considerable latitude in shaping the limits and extent of voir dire. Voir dire is not a topic that lends itself to appellate review because of the nuances and subtleties presented by each jury case. The trial court is vested with discretion [1] to see that voir dire is effective in obtaining an impartial jury, and [2] to see that this result is obtained with reasonable expedition; the ultimate test is not whether the trial judge should or should not have allowed any single question or even line of questioning, but whether the court permitted the parties to ferret out bias and partiality. The primary purpose of voir dire is to give a litigant an opportunity to explore the potential jurors' attitudes in order to determine whether the jury should be challenged. Lopez-Stayer ex rel. Stayer v. Pitts, 93 P.3d 904 [Wash. App. Div. 3 June 22, 2004].

Denial of motion for full attorney-directed voir dire, which allegedly would have disclosed some jurors' knowledge of defendant's criminal history, was not abuse of discretion in bank robbery and conspiracy prosecution, where defense counsel suggested that district court could handle publicity issue "in the back room quietly with no problem," stated that admonishing jury to ignore any information they were exposed to was what defense would have done on voir dire anyway, and submitted jury questions that did not specifically inquire into exposure to publicity. U.S. v. Rasco, 123 F.3d 222 [5th Cir. 1997] [La..].

Trial court has broad discretion to determine who will question potential jurors and what questions will be asked. U.S. v. Rasco, 123 F.3d 222 [5th Cir. 1997] [La..].

Rule 24[a] of the Federal Rules of Criminal Procedure gives the district court broad discretion in determining the appropriate scope and method of jury voir dire. United States v. Magana-Arevalo, 639 F.2d 226, 228 [5th Cir. 1981]; United States v. Gerald, 624 F.2d at 1296. The court's discretion extends both to the decision whether to propound questions proffered by counsel and whether jurors should be questioned collectively or individually out of the presence of other jurors. Id.; United States v. Shavers, 615 F.2d 266, 268 [5th Cir. 1980]; United States v. Delval, 600 F.2d 1098, 1102 [5th Cir. 1979]. This broad discretion, however, is limited by the requirements of due process, and the reviewing court must independently evaluate the voir dire testimony of empaneled jurors, as well as the record as a whole, and determine whether the method of voir dire adopted by the district court is capable of giving "reasonable assurance that prejudice would be discovered if present." United States v. Delval, 600 F.2d at 1102, quoting United States v. Nell, 526 F.2d 1223, 1229 [5th Cir. 1976]. The district court's decision will "not be lightly overturned." United States v. Carroll, 582 F.2d 942, 946 [5th Cir. 1978]. United States v. Hawkins, 658 F.2d 279 [5th Cir. 1981] [Tex.].

A state trial judge's finding of bias during voir dire is a determination of fact, subject to a presumption of correctness on federal habeas review. 28 U.S.C.A. §§ 2254. Beazley v. Johnson, 242 F.3d 248 [5th Cir. 2001] [Tex.].

District court has broad discretion in conducting voir dire and a reviewing court will not overturn its decision regarding impartiality absent a clear abuse of discretion. United States v. Rodriguez, 993 F.2d 1170, 1176 [5th Cir.1993]; U.S. v. Rasco, 123 F.3d 222 [5th Cir. 1997] [La..]. Such abuse will be found when there is insufficient questioning to produce some basis for defense counsel to exercise reasonably knowledgeable right of challenge. U.S. v. Shannon, 21 F.3d 77 [5th Cir. 1994] [Tex.].

“[A]lthough counsel is entitled to develop on voir dire information concerning the nature of a prospective juror's previous jury service, United States v. Montelongo, 507 F.2d 639, 641 [5th Cir.1975], such prior service, even in similar cases during the same term of court cannot support a challenge for cause unless it can be shown that such prior service actually biased the prospective juror. United States v. Reibschlaeger, 528 F.2d 1031, 1032-33 [5th Cir.], cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 [1976].” U.S. v. Brown, 699 F.2d 704 [5th Cir. 1983] [Tex.]; U.S. v. Brown, 699 F.2d 704 [5th Cir. 1983].

Trial court's discretion on voir dire extends both to decision whether to propound questions proffered by counsel and whether jurors should be questioned collectively or individually out of presence of other jurors, but broad discretion is limited by requirements of due process, and reviewing court must independently evaluate voir dire testimony of empaneled jurors, as well as record as a whole, and determine whether method of voir dire adopted was capable of giving reasonable assurance that prejudice would have been discovered if present. U.S. v. Hawkins, 658 F.2d 279 [5th Cir. 1981] [Tex.].

The Second Circuit refused to speculate about possible jury bias, holding that the district court's chastising remarks towards several venire persons who appeared to voice their bias in order to get out of jury duty did not result in a violation of the defendant's Sixth Amendment rights. United States v. Colabella, 448 F.2d 1299 [2d Cir.1971], cert. denied, 405 U.S. 929, 92 S.Ct. 981, 30 L.Ed.2d 803 [1972]

The Fifth Circuit found that the district court's remarks to venire person in front of venire panel, to effect that it was unfair for that venire person to state that he felt that any person who came to court was guilty of something, and that venire person should only answer question he was asked, did not deprive defendant of fair and impartial jury. Defendant had argued that “the remarks had a chilling effect on the candor of the rest of the venire panel, so that they were unwilling to admit to partiality and to answer honestly the questions posed by the court during the rest of voir dire. Therefore, it was impossible to gain the necessary information to intelligently exercise his peremptory strikes.” U.S. v. Shannon, 21 F.3d 77 [5th Cir. 1994] [Tex.]

District court's judgment in dismissing juror should be guided by underlying purpose of voir dire and jury selection, that is, to provide parties with benefit of impartial trier of fact; in criminal cases, doubts about existence of bias should be resolved against permitting juror to serve.

In determining a juror's competency, a trial judge is not expected to rely upon one isolated area of voir dire. State v. O'Conner, 320 So.2d 188, 191 [La.1975]. The judge is not bound by a juror's answer to a particular question when that answer is inconsistent with other answers and other facts and circumstances known to the judge as a result of the entire examination. Id.; State v. Oliphant, 56 So.2d 846, 847 [La.1952]. "Unmistakable clarity" is not required to establish that a juror's views on the death penalty would prevent or substantially impair the performance of her duties. Wainwright v. Witt, 469 U.S. at 424, 105 S.Ct. at 852 [The Supreme Court stated: This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many venire men simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these venire men may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge will be left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.” The exercise of the trial judge's power of observation often proves the most accurate method of ascertaining the truth. “To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.' " Wainwright v. Witt, 469 U.S. at 434, 105 S.Ct. at 857; State v. Frost, 727 So.2d 417 [La. 1998].

The trial court noted the inconsistency in Miss White's responses to questions about her ability to consider the death penalty. White's testimony that she could indeed put her reservations about capital punishment aside conflicted with remarks to the contrary on her jury questionnaire and her responses to questions asked of her by the court and by the prosecution. Her equivocal yet conflicting responses exemplify the situation described by the Supreme Court in Wainwright v. Witt, 105 U.S. 844 [1985]. Also see State v. Burr, 341 N.C. 263, 461 S.E.2d 602, 613 [N.C.1995]. Miss White's varying and overall inconsistent testimony led to the trial judge's conclusion that she could not reasonably be expected to be fully impartial regarding the penalty to be imposed. It was the trial court's duty to perform such an evaluation. People v. Davis, 794 P.2d 159, 205 [Colo.1990]; See also People v. Millwee, 18 Cal.4th 96, 74 Cal.Rptr.2d 418, 954 P.2d 990 [Cal.1998] [trial court did not err in dismissing juror for cause where inconsistent answers left trial court with impression that juror could not follow the law]; Greene v. State, 268 Ga. 47, 485 S.E.2d 741 [Ga.1997], cert. denied, 522 U.S. 1000, 118 S.Ct. 568, 139 L.Ed.2d 408 [1997] [deference afforded trial court's grant of State's challenge for cause where juror gave conflicting and equivocal answers regarding her views on the death penalty]; Taylor v. State, 638 So.2d 30 [Fla.1994], cert. denied, 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 424 [1994]. State v. Frost, 727 So.2d 417 [La. 1998]. In considering this juror's testimony as a whole, and not merely "correct" answers in isolation, the court found that the record supported the trial court's ultimate determination that Miss White was unfit for service. In affording the trial court the deference due under the circumstances, the assignment of error had no merit. State v. Frost, 727 So.2d 417 [La. 1998].

“Thomas asserts that he is entitled to relief because two jurors did not reveal during voir dire their bias against oral contracts, which would have led to their dismissal for cause. Thomas has not established that the jurors in question "failed to answer honestly a material question on voir dire." McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 [1984] [plurality]; Franklin v. State, 138 S.W.3d 351 [Tex. Crim. App. June 30, 2004]; Williams v. Bagley,380 F.3d 932, 2004 Fed.App. 0268P, [6th Cir. Aug. 13, 2004] [Ohio]. Moreover, "a finding [of juror bias] is based upon determinations of demeanor and credibility that are peculiarly within a trial judge's province." Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 [1985].” Thomas v. Ogletree Deakins Nash Smoak & Stewart, P.C., 80 Fed.Appx. 324 [5th Cir. 2003] [Tex.].

In a case that can support the extra cost, the parties should consider asking the court to submit written questions to the panel to supplement the oral voir dire. Larrabee & Drucker, Adieu Voir Dire: The Jury Questionnaire, 21 Litigation 37, 37-38 [Fall 1994]. Panelists are more likely to respond to questions in writing than to questions asked orally in front of the entire panel. Id. at 38. The court has the discretion to deny such a request because individualized examination of the panel is not constitutionally required. U.S. v. Phibbs, 999 F.2d 1053, 1071 [6th Cir.1993].

The court may either perform the voir dire itself or allow the parties to do it. Fed.R.Civ.Proc. 47[a]; Hicks v. Mickelson, 835 F.2d 721, 725 [8th Cir.1987]; U.S. v. Sherwood, 98 F.3d 402, 407 [9th Cir.1996] [It was appropriate for judge to announce that he would not allow abuse of attorney voir dire at sidebar]. In most federal courts, the district judge conducts the entire voir dire. Hicks v. Mickelson, 835 F.2d 721, 725 [8th Cir.1987]. A judge who chooses to conduct the examination has a duty to ferret out actual bias. U.S. v. Rowe, 106 F.3d 1226, 1227 [5th Cir.1997]. If the court performs the voir dire, the attorneys should be prepared to supplement the examination with additional questions. Fed.R.Civ.Proc. 47[a]. A magistrate judge cannot conduct voir dire without the consent of the parties. Stockler v. Garrett, 974 F.2d 730, 732 [6th Cir.1992]; Olympia Hotels Corp. v. Johnson Wax Dev. Corp., 908 F.2d 1363, 1368-69 [7th Cir.1990].

The court has broad discretion to determine the questions to ask the venire during voir dire. U.S. v. Adams, 305 F.3d 30, 35 [1st Cir. 2002]; Jones v. Wellham, 104 F.3d 620, 630 [4th Cir.1997]; U.S. v. Quiroz-Hernandez, 48 F.3d 858, 869 [5th Cir.1995]. The court’s discretion is limited by each party’s due process right to an impartial jury. U.S. v. Rowe, 106 F.3d 1226, 1227 [5th Cir.1997] [Judge’s intimidation of panelists cut off vital flow of information and deprived defendants of impartial jury]; Tyus v. Urban Search Management, 102 F.3d 256, 262 [7th Cir.1996] [Court’s questions about racial composition of panelist’s residence injected prejudice into trial that party could not overcome]; Britz v. Thieret, 940 F.2d 226, 232 [7th Cir.1991].

A district court traditionally has broad discretion in the conduct of voir dire, which we review to ensure that jury selection in any given case comports with the "essential demands of fairness," as required by the Sixth Amendment. Dennis v. Mitchell, 354 F.3d 511, 524 [6th Cir.2003]; Morgan v. Illinois, 504 U.S. 719, 730, 112 S.Ct. 2222, 119 L.Ed.2d 492 [1992]; U.S. v. Abu-Taqa, 100 Fed.Appx. 462, 2004 WestLaw 1277024 [6th Cir. 2004] [Ky.]. The same holds true in Louisiana state courts. State v. Lucky, 755 So.2d 845, 855 [La. 1999]; State v. Robertson, 712 So.2d 8, 20 [La. 1998]; State v. Allen, 682 So.2d 713, 722 [La. 1996]; State v. Carmouche, 872 So.2d 1020, On Rehearing, 2001-0405 [La. 5/14/02]. Yet the limitations the judge imposes may not deprive counsel of a reasonable opportunity to determine grounds for cause challenges and to exercise intelligently his peremptory challenges. State v. Thibodeaux, 750 So.2d 916, 924 [La. 1999]; State v. Craig, 699 So.2d 865, 876 [La. 1997]; State v. Hamilton, 681 So.2d 1217, 1222 [La. 1996]; State v. Hall, 616 So.2d 664, 668- 69 [La.1993]; State v. Williams, 457 So.2d 610, 613 [La.1984]; State v. Carmouche, 872 So.2d 1020, On Rehearing, 2001-0405 [La. 5/14/02].

Appellate review of the entire voir dire is essential to determine whether the trial court abused its discretion in excusing a juror. State v. Bates, 397 So.2d 1331, 1334 [La.1981]; State v. Frost, 727 So.2d 417 [La. 1998].

Adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled. United States v. Davis, 15 F.3d 1393, 1412-13 [7th Cir.1994]; Tracey v. Palmateer, 341 F.3d 1037, 1044 [9th Cir.2003]; United States v. Bradshaw, 281 F.3d 278, 289-90 [1st Cir.2002]; United States v. Angulo, 4 F.3d 843, 847 [9th Cir.1993].

The court may limit the type of questions as long as each party’s right to effectively select a jury is not impaired. Langley v. Turner’s Express, Inc., 375 F.2d 296, 297 [4th Cir.1967]. The court has no obligation to ask the questions proposed by the parties or use the language submitted by counsel. Sasaki v. Class, 92 F.3d 232, 238-40 [4th Cir.1996]; Darbin, 664 F.2d, at 1113. The decisive issue is whether the court adequately tests the panel for bias or partiality. See Cimino, 151 F.3d at 323; U.S. v. Lancaster, 96 F.3d 734, 742 [4th Cir.1996]; U.S. v. Foster, 57 F.3d 727, 730 [9th Cir.1995], vacated in part on other grounds, 133 F.3d 704 [9th Cir.1998]; Waldorf v. Shuta, 3 F.3d 705, 710 [3d Cir.1993].

The process of voir dire is said to have one primary purpose: the selection of a fair and impartial jury. Williams v. State, 424 So. 2d 148, 149 [Fla. 5th DCA 1982]. But the direct examination of the prospective panel has two immediate objectives: to disclose whether grounds for either a challenge for cause or for a peremptory challenge exist. Loftin v. Wilson, 67 So.2d 185, 192 [Fla. 1953]. That is, whether prospects meet statutory qualifications, whether the court and the parties feel they can fairly apply the law to the facts, or whether they disclose some bias that justifies their removal. Ritter v. Jimenez, 343 So. 2d 659, 661 [Fla. 3d DCA 1977] ]. The judge has broad discretion in controlling voir dire. Barker v. Randolph, 239 So.2d 110, 112 [Fla. 1st DCA 1970]. Thus, the court may limit or expand the time needed for questioning and the scope of examination allowed to the parties, depending on the circumstances of the case. Peri v. State, 426 So.2d 1021, 1025 [Fla. 3d DCA 1983]; Barker v. Randolph, 239 So.2d 110, 112 [Fla. 1st DCA 1970]. For example, the court may allow sequestered questioning of individual prospective jurors in a sensitive case. Davis v. State, 461 So. 2d 67, 69 [Fla. 1984].

A court cannot restrict the voir dire so that it destroys a party’s ability to exercise its peremptory challenges. Knox v. Collins, 928 F.2d 657, 661 [5th Cir.1991]; Langley v. Turner’s Express, Inc., 375 F.2d 296, 297 [4th Cir.1967]. It is reversible error for the court to restrict the voir dire to “stock questions” that merely establish the identity of the panelists and do not permit the discovery of potential bias or prejudice. Art Press, Ltd. v. Western Printing Mach. Co., 791 F.2d 616, 618-19 [7th Cir.1986]. Similarly, a “catch-all” question asking panelists whether they know of any reason why their impartiality might be impaired is not sufficient to protect the parties’ rights. U.S. v. Gillis, 942 F.2d 707, 710-11 [10th Cir.1991].

In federal court, the content of voir dire is controlled by Fed.R.Civ.Proc. 47[a] and is not subject to the dictates of a contrary state law. Smith v. Vicorp, Inc., 107 F.3d 816, 818 [10th Cir.1997] [District court was not required to ask questions on voir dire that are required by state law in tort cases].

The court has broad discretion regarding the length of voir dire. Ratliff v. Schiber Truck Co., 150 F.3d 949, 955-56 [8th Cir.1998] [Limiting voir dire to 20 minutes per party was not plain error]. The district court’s discretion in conducting voir dire will not be disturbed unless the appellate court finds the voir dire did not probe the panelists for bias and prejudice. U.S. v. Shannon, 21 F.3d 77, 82 [5th Cir.1994]; Pitasi v. Stratton Corp., 968 F.2d 1558, 1563 [2d Cir.1992]; Gillis, 942 F.2d, at 709-10.

“No complaint is made that voir dire by counsel was unduly restricted in this respect. A district judge generally has broad discretion in determining how best to conduct voir dire, United States v. Greer, 968 F.2d 433, 435, 441 [5th Cir.1992], cert. denied, 507 U.S. 962, 113 S.Ct. 1390, 122 L.Ed.2d 764 [1993], but that discretion is abused if the scope of voir dire is inadequate to discover bias or deprives a party of an opportunity to make reasonably intelligent use of his peremptory challenges. Id. at 435, 443.” Cimino v. Raymark Industries, Inc., 151 F.3d 297 [5th Cir. 1998] [Tex.].

The attorney should always ensure that the court reporter records the complete voir dire, including all objections and all bench conferences. Hicks v. Mickelson, 835 F.2d 721, 724 [8th Cir.1987].

Before the end of the court-conducted examination of the venire, a party must inform the court of additional questions the party considers so essential that failure to ask them would constitute reversible error. King v. Jones, 824, F.2d 324, 326 [4th Cir.1987]. Fed.R.Civ.Proc. 46 requires a timely objection to preserve error. The party must explain why the questions are necessary to a proper voir dire. See Horsey v. Mack Trucks, Inc., 882 F.2d 844, 847-49 [3d Cir.1989]; King v. Jones, 824, F.2d 324, 326 [4th Cir.1987].

“Appellant first argues that the trial judge committed reversible error by excusing prospective juror Beatrice Garcia for cause because of her opposition to capital punishment. Bell contends that Garcia's responses during voir dire were inconsistent, ambivalent, and ambiguous and did not contain the degree of unmistakable clarity sufficient to warrant her exclusion from the jury under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 [1968]. Garcia unambiguously stated at least seven times that she could never impose the death penalty under any circumstances. She qualified her answer only when defense counsel asked whether she could impose capital punishment on a killer of a family member. Such is not the case here, and her otherwise articulate, unambiguous, and oft-repeated views on capital punishment easily could have led the trial judge to properly conclude that Garcia's views on capital punishment "would 'prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions and [her] oath.' " Wainwright, 469 U.S. at 424, 105 S.Ct. at 852, 83 L.Ed.2d at 851 [1985]; see also Griffin v. Lynaugh, 823 F.2d 856, 864, [5th Cir.1987].” Bell v. Lynaugh, 828 F.2d 1085 [5th Cir. 1987] [Tex.].

Prosecutor's voir dire questions whether prospective jurors were members of Aryan Brotherhood, had ever filed affidavit claiming freedom as natural, white human being, or had ever filed affidavit tracing ancestry from Anglo-Saxons were improper in prosecution for attempted tax evasion; questions painted defendant as racist since prosecutor stated that questions directly related to evidence in case; and no evidence showed that defendant had any ties with Aryan Brotherhood. U.S. v. Masat, 896 F.2d 88 [5th Cir. 1990] [Tex.]. “The Supreme Court has said of prosecutorial conduct that "while [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 [1935]. The prosecutor's conduct in his voir dire questioning went beyond hard blows, into the realm of foul blows. Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial. United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 [1985]. The voir dire questions appear to be quite prejudicial, painting Masat as a racist. On the other hand, the prejudicial effect was softened by the admission into evidence of documents from which the prosecutor paraphrased his questions. The views Masat held relating to his status as a free, white, male sovereign were put before the jury, and in fact were an integral part of his defense that he believed he did not have to pay taxes. Simply because the jury was obliquely informed of these views at an earlier time in the proceedings does not mean that the verdict was affected.” U.S. v. Masat, 896 F.2d 88 [5th Cir. 1990] [Tex.].

The defendant was found not to have been prejudiced by the trial judge's contempt warning to his defense attorney during an unrecorded bench conference during voir dire. State v. LaCaze, 759 So.2d 773 [La. App. 3rd Cir. 1999]. In this case, the Third Circuit noted “Although the bench conference containing the specific "outburst" complained of by the defendant is not recorded, the record contains the transcript of the arguments heard on the defendant's motion to strike the entire panel present at the time of the remarks. The transcript indicates that the discussion, which was held outside of the presence of any jurors, included the following colloquy between the defendant's trial counsel and the trial court: ...MR. TOWNSEND: Your Honor, the motion I wanted to make is and I thought it was an appropriate time, I move to make ... I ask the Court for leave of Court to make a motion outside the presence of the jury which was denied. Your Honor, asked me the nature of it and I explained on the record the nature of it was whether it was inadvertent or not on part of, Your Honor, there were comments made towards me and the matter in which I was conducting voir dire. Which could cause a striking at my client over my shoulder. I think that's inherently unfair. I think it's highly prejudicial. And I think that it has the propensity to taint the entire jury pool. This Court, Your Honor, has been a Judge in this court for a number of years before retiring. And you carry certain weight with that office and you carry certain respect with that office and when this Court acts in the manner in which it did towards me, who at a time when I'm given wide latitude under the law to conduct voir dire examination, I think that it's inherently unfair to my client ... In addition, and the purpose of the motion was in the event that it was inadvertent on part of this Court, to bring to the Court's attention that this is the 3rd time during my attempt to conduct voir dire, understanding the wide latitude that I've got, that I was interrupted by the Court. Only once has Mr. Kyzar objected. The second interruption by the Court the lady looked up and says, I've answered the question. There was a question, when I was questioning Mr. Hammons. Sometimes one factor alone does not make one an unfair or impartial juror, but when you take a collective number of factors that might influence that juror to the point that would create, under our law, the granting or at least the consideration of a challenge for cause. Now, Judge, this is hard for me to do. I hope that, Your Honor, you will hold it against me and not against my client. I didn't want to go further. I wanted to make that motion and I was advised by the Court that I would be held in contempt and placed in jail. And I seriously argued to the Court that I didn't want to go further at that time. This is about the one trial for Princess LaCaze. And I think the remarks made by this Court were improper and inherently unfair to her receiving a fair trial. Thank You. ...THE COURT: The purpose of voir dire examination of prospective jurors is to illicit information from them so, as to acquire the information needed to assess their qualifications. What you were doing for the most part of your voir dire examination was preaching to the jury. You were repetitious. You were asking the same questions worded slightly differently, perhaps, at times, but you were asking the same questions over and over and over and you were arguing your case to them. It was at the point that you were arguing to the jurors that I asked you if there was a question somewhere in that argument. If you took my suggestion other than what it was suppose to mean and that was to get to the point and let's get to the qualification of the jury, then that's a difference of opinion between what I thought I was doing and what you thought I was doing. Your objection is otherwise noted for the record, made a part of these proceedings. I would state for the record though, since you wanted to dismiss all of the four or five jurors or potential jurors, who were in the jury box, that what conversation we had was at a sidebar, it was quiet. It was not heard by the jurors. And I'm firmly convinced that no prejudice was observed by these jurors in that regard.....MR. TOWNSEND: Your Honor, in addition to the motions that I previously made, and for the same reasons that I have previously given, particularly, that I felt the remarks made were in hearing distance of the Court, excuse me, the remarks made by the Court were in hearing distance of the prospective jury members and that ... I can't estimate the feet, but maybe twenty [20] feet or so. And that the remarks that I previously stated in my previous argument that the Court made were in hearing distance of the prospective jurors and could be prejudicial to and would be prejudicial to Ms. LaCaze and on that basis I would move for a mistrial.... THE COURT: Motion denied. Bring the jury in please.” Though finding the trial court’s remarks inadequate to reverse, the court noted that “[I]f a trial court's disparaging remarks or intemperate criticism of defense counsel adversely influence and prejudice the jury against the defendant, these comments may constitute reversible error. State v. Hubbard, 97-916 [La. App. 5 Cir. 1/27/98], 708 So.2d 1099, writ denied, 98- 0643 [La. 8/28/98]; 723 So.2d 415. However, unless the improper comments are of such a character as to influence the jury and contribute to the verdict, they do not constitute reversible error. Id. See also State v. Hamilton, 481 So.2d 135 [La. App. 2nd Cir.1985]. The lack of a transcription of the bench conference at issue makes our review of the defendant's assertion difficult.” Id. at 780.

Trial court's refusal to allow mother's attorney to use the word "insurance" in conducting his voir dire of jury was not abuse of discretion. In the mother's medical malpractice case brought on behalf of her child, alleging that physician negligently managed child's delivery, resulting in child suffering permanent nerve damage from shoulder dystocia, the trial court permitted extensive inquiry into juror's attitudes on medical malpractice litigation, medical malpractice "crisis," claims, and frivolous lawsuits, and, the trial court’s ruling reflected carefully balanced line between allowing mother's counsel to discover bias which might have been engendered by publicity by insurance companies and physician's right to try his case based upon his medical judgment rather than his financial wherewithal or that of his insurance carrier. Lopez-Stayer ex rel. Stayer v. Pitts, 93 P.3d 904 [Wash. App. Div. 3 June 22, 2004].

A criminal defendant is entitled to an impartial jury that will render a verdict based exclusively upon the evidence presented in court and not on outside sources. Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 [1961]; United States v. Gerald, 624 F.2d 1291, 1296 [5th Cir. 1980], cert. denied, --- U.S. ----, 101 S.Ct. 1369, 67 L.Ed.2d 348 [1981]. Exposure to pretrial publicity, however, does not necessarily destroy a juror's impartiality. Calley v. Callaway, 519 F.2d 184, 205-06 [5th Cir. 1975] [en banc], cert. denied, 425 U.S. 911, 95 S.Ct. 1505, 47 L.Ed.2d 760 [1976]. "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court." Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1643 [citations omitted]. U.S. v. Hawkins, 658 F.2d 279 [5th Cir. 1981] [Tex.].

“During voir dire, the court introduced the defense counsel to the jury panel, and one of the lawyers told the jury that he was from San Antonio, the further away of the two cities involved. We perceive no improper inference that the jurors could draw from the knowledge that Mack had retained lawyers from other cities in Texas. Any inference that the jurors may have drawn based on the prosecutor's comment as to the number of lawyers representing Mack does not require reversal. As the district court pointed out, the jury was aware from the beginning of the trial that Mack had three lawyers assisting in his defense. The fact that Mack's three lawyers were in the courtroom participating in the defense in the presence of the jury throughout the trial distinguishes this case from United States v. McDonald, 620 F.2d 559 [5th Cir. 1980]. Mack argues McDonald stands for the proposition that there is a deprivation of a right to counsel in his case. But in McDonald, the prosecutor brought out in evidence and argument the fact that McDonald was represented by the presence of his attorney at the time a search warrant was executed on his premises. This was found to be a deprivation of the right to counsel in violation of the Sixth Amendment. The critical point in the McDonald case, of course, was the fact that the prosecutor was emphasizing McDonald's reliance upon counsel in a situation where often counsel is not present. The jury in McDonald would have no knowledge of the use of counsel by the defendant at the search if the prosecutor had not made the point, thus implying that the use of counsel at least hinted at guilt. Mack's situation is entirely different. Counsel were in court, and the situation was spread before the jury throughout the trial. While the prosecutor's remark falls somewhat short of the high level of even-handedness expected of those responsible for prosecutions in United States courts, any error in the prosecutor's remarks was harmless beyond a reasonable doubt. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 [1969]; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 [1967]; Harryman v. Estelle, 616 F.2d 870 [5th Cir. 1980].” U.S. v. Mack, 643 F.2d 1119 [5th Cir. 1981] [Tex.].

“Mack argues that the prosecutor caused reversible error when he made the following statement during voir dire: ......MR. WUESTER: Is there anyone here among you who, if the government proves its case beyond a reasonable doubt, which it intends to do or I wouldn't be here today, .....MR. GOLDSTEIN: Your Honor, we're going to object to counsel placing his own credibility into issue here. The reason he is here today is because he is representing the government. By stating it in the manner in which he does, he is somehow impugning the government with greater credibility because he wouldn't be here unless he believed in his case. Your Honor, we believe that is putting his own personal belief in issue. ....MR. WUESTER: I agree, your Honor, and I will rephrase the question. ....THE COURT: All right. ....MR. WUESTER: If the government proves its case beyond a reasonable doubt, is there anyone here among you who could not, for whatever reason, vote guilty? Thank you. == In making the remark about his personal commitment to proving his case, the prosecutor was either bolstering the credibility of as-yet-uncalled witnesses or expressing an opinion about the facts at issue in the case. The comment was inappropriate for either purpose. Fed.R.Evid. 608[a][2] [bolstering credibility of witnesses]; United States v. Morris, 568 F.2d 396 [5th Cir. 1978] [expression of prosecutor's opinion]. However, the remark caused no prejudice. After defense counsel objected, the prosecutor immediately withdrew the question and properly phrased it. At least twice during his charge, the district court cautioned the jury that remarks made by the lawyers were not to be considered as evidence. The error is harmless. See United States v. Weinrich, 586 F.2d 481 [5th Cir. 1978]; United States v. Morris, 568 F.2d 396 [5th Cir. 1978]; United States v. Herrera, 531 F.2d 788 [5th Cir. 1976]; United States v. Smith, 517 F.2d 710 [5th Cir. 1975].” U.S. v. Mack, 643 F.2d 1119 [5th Cir. 1981] [Tex.].

Return to “Jury Questionnaires, Voir Dire, Jury Selection and Jury Bias”

Who is online

Users browsing this forum: No registered users and 0 guests