Jury selection in “jury box voire dire” jurisdictions
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Update: Mark of Windypundit shares his experiences as a juror. It is a four part series that starts with jury selection and ends with reflections after the verdict. Read through it. Attorneys always say that we don’t know what goes on in a juror’s mind or during deliberations. This is a way to find out. Mark’s posts are extremely detailed and provide great insight into his thinking. It will also show you not to assume anything and to make sure everything is explained (as much as it can be).
Also, if you click on the “Sphere: Related Content” link at the bottom of this post, it will show you several other posts across the blogosphere where the authors talk about jury duty (Here’s a good one). It also brings up this interesting website of a prosecutor and his tangential “ask the DA” blog. Jury duty makes for some light Saturday morning reading.
Original: In the comments to the original post on jury selection practices across the country, Miranda asks how jury selection is conducted in jurisdictions where questions are posed to the jury pool together. She writes:
In CT, jurors are advised even during the voir dire process not to discuss their feelings about the case, who they may know and how, etc. with the other venirepersons. The idea behind this, of course, is that the court should get all of this information privately, so no other potential juror is swayed or affected by what is said. For example, does the rest of the panel need to know I go to church with the victim? Or that I heard on the news that the defendant was out on parole when the crime was committed? Or that I have personal experience with sexual assault and feel that the crime is so terrifying and horrible that I can’t judge the defendant fairly? I could go on and on…
How does this work in a group setting?
As the report states (page 28):
Judges and attorneys have gradually become more aware of jurors’ reluctance to disclose sensitive or embarrassing information in the presence of the entire jury panel and courtroom observers.
Can any of you who practice in such a jurisdiction provide the answer? I’m very curious to know.
Sphere: Related Content
The judge gives people the opportunity to discuss things “in private” with himself and the attorneys. This goes on (depending on the jurisdiction) at the bench, in an anteroom, or in the chambers.
Even if it is “in private”, is it still on the record? I’d imagine it would have to be…
Gideon,
Here in Texas on non-capital cases we do group voir dire (that’s “vore dire,” not “vwahr deer”) — 24 people or so on most misdemeanor cases (in which each side gets 3 peremptory challenges and juries are of 6 people) and 60 or so on most felony cases (in which each side gets 10 peremptory challenges and juries are of 12 people). Larger panels, of course, in high-publicity cases and cases to which people are likely to have strong emotional reactions (child sex abuse allegations, for example).
Judges invite jurors to answer the questions about which they’re sensitive at the bench. On the record, as you correctly imagine, but out of the hearing of the rest of the panel.
It’s hard for me to imagine individual voir dire in a non-capital case. My gut says that group voir dire is better (cetera paribus) in most cases; I’ll give it a little more thought and blog on it.
Mark.
Gideon –
I thought I had commented on this, but I don’t see my comment now. See my blog post here instead.
Yes, it is on the record. I have heard tell that some judges would allow for “sealed” in camera review, but if someone objects enough, maybe everyone would agree it isn’t worth the trouble.
Is it solely up to the juror whether he/she wants to approach the bench? Is there a way counsel can request that the juror answer the question privately?
Has anyone experienced a situation where an argument was made that the entire panel was tainted by something blurted out by another venireperson?
Miranda,
Here in Texas, it’s generally left up to the juror. I think lawyer could ask the judge to permit questioning out of the presence of the entire panel — the relevant statute (Tex. Code Crim. Proc. Art. 35.17) says “When the court in its discretion so directs . . . the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.” This suggests that the court has discretion to do things another way.
What are some things you’d want to question jurors individually about?
I’ve never seen the situation you’ve described. Here’s a headnote from one such case:
I’m not afraid of jurors blurting out ignorant opinions. What would concern me more is if a venireperson knew of the defendant and blurted out some inadmissible bit of information about him.
I’m pleased that you thought my recent account of being on a jury “good,” but I should point out that I don’t believe I was at all typical.
I took notes. Nobody said I couldn’t. I don’t trust my memory all that much so I always have a notebook and a pen with me at all times. I knew what jury nullification was all about. I was very uncomfortable, perhaps even prejudiced, with the defense right from the beginning because his way of leading the jury seemed so less straightforward than the prosecution, so targeted at reaching a game point rather than finding real justice.
Perhaps I should have been quiet and unremarkable, speaking only when asked. Then I would have watched the case all the way through. But in the end I don’t think I could have done the case the justice it was due, and I’m more relieved than unhappy that I was “respectfully” dismissed from the jury.
Mr. Sternberg – When you say that you don’t believe you were typical, what do you mean by that? Do you mean your honesty in divulging your thoughts about the case and the attorneys wasn’t something you think a typical juror would have done?
Mr. Bennett – First, thank you for your thoughts and input on this and your own blog. I enjoyed very much reading your approach and ideas about jury selection. I am fascinated with practices and techniques re: selection in a group setting because I feel it perhaps requires more skill and care than being able to question them individually.
To answer your question as to what I would want to ask a juror individually, I think some of things I had in mind I mentioned in my first post and you touched on at the end of your last post… Any information about the defendant, or the victim, or other witnesses in the case. For that matter, any information about the attorneys – I just read a transcript the other day where a juror told the judge that he knew of/knew the prosecutor, thought he did a wonderful job in his position, and admired his “record”. Or any information about what they know about the case – or even their feelings about it. If a juror is going to be dismissed for any of these reasons, presumably it’s because their knowledge or opinion renders them unable to sit as an impartial juror. Why taint the rest of the panel with that very same knowledge or opinion?
Miranda: No, it wasn’t my honesty. I think every juror goes in with honest intent. I have been on juries before and I have been impressed with the depth of regard those jurors had for their responsibilitiy.
Instead, I don’t think that the knowledge with which I went into the courtroom was typical of my fellow jurors. I’m the sort of person who enjoys reading not just the Volokh conspiracy but Volokh’s actual papers on constitutional law.
I write speculative fiction as a hobby (and sometimes make money from it) so contentious issues like law and political science and economics make for great launching points for speculative issues. There were other people on the jury who had wrestled with public policy and law and so forth, and like me all of them were tossed from the jury. I may have been a typical person of the jury assembly and the jury pool, but I don’t think I make officers of the court comfortable as a juror.