Voir Dire

Voir dire is a legal proceeding during which attorneys and/or judges question prospective jurors (called venirepersons) to determine their fitness for jury duty. The purpose of voir dire is to uncover bias; the procedure is designed to identify and eliminate members of the venire panel who are unable to be impartial and who do not meet statutory requirements of jury service. The format and scope of voir dire questioning varies across jurisdictions and the discretion of the trial judge. Research on voir dire is limited and primarily concerns its effectiveness, the relative effectiveness of extended versus minimal voir dire, and the factors influencing juror honesty during voir dire questioning.

Purpose of Voir Dire

Voir dire, a term derived from Middle French which means “to speak the truth,” is a pretrial legal proceeding. During voir dire, the members of the jury pool, known as the venire panel, are questioned by the judge, the attorneys, or both. Questioning may be directed toward the group as a whole or administered privately to individual jurors. Based on their responses to this questioning, prospective jurors are chosen for removal from the jury. The legal purpose of voir dire is to uncover any existing jury bias and to protect against the possibility that the defendant receives an unfair trial. This questioning process is designed to eliminate both jurors who do not meet the statutory requirements for jury service and those who are unable or unwilling to set aside preexisting biases and remain impartial. The Sixth Amendment of the U.S. Constitution guarantees all defendants the right to a speedy and public trial by an impartial jury of their peers, and thus the judge must determine whether service by any of the venire members would result in a constitutional violation.

The impaneling of an impartial jury requires that venire members answer demographic and attitudinal questions, as well as questions regarding their familiarity with the case, the litigants, and anyone else involved in the case. Jurors who express an inability to be impartial may be excused from jury service through a challenge for cause or a peremptory challenge. However, it is possible that the judge may alternatively attempt to “rehabilitate” biased jurors or secure public commitments that they will ignore their biases. Rehabilitation is attempted when jurors indicate that they could have difficulty remaining impartial to both sides of the case. These jurors may be asked if their preexisting attitudes will interfere with their ability to be fair and follow the law. Jurors who agree to set aside their biases and decide the verdict based on the evidence are considered “rehabilitated” and fit for jury service. Although the objective of voir dire is to identify jurors who hold opinions or biases that would make them unfit or ineligible for jury service, the voir dire proceeding may also be used for other purposes. Attorneys may attempt to ingratiate themselves with the jury, instruct the jury on the relevant law, or obtain public assurances from jury members that they can be fair during voir dire.

Procedural Elements of Voir Dire

The format of voir dire proceedings and the number and scope of voir dire questions vary widely across states and jurisdictions. The format of voir dire, the level of attorney involvement, and the nature of questioning are ultimately determined by the trial judge. In some instances, only minimal voir dire is allowed, and the judge conducts all questioning of the venire panel; attorneys have a minor role, and questioning is typically conducted in a formal manner. In addition, the questions are superficial in nature and primarily concern the prospective jurors’ ability to serve as impartial jurors. Federal court adheres to this format of voir dire. Extended voir dire typically allows for a greater number of questions, more case-specific questions, and greater involvement of the attorneys in the questioning. The questioning format also varies according to the discretion of the judge. Questions may be posed to the venire members as a group, or members of the venire panel may be questioned individually, out of earshot from the remainder of the panel.

Attorneys from each side of the case may recom­mend the elimination of venire members by issuing an objection to a particular prospective juror’s presence on the jury in the form of a challenge. There are two cate­gories of challenges: challenges for cause and peremp­tory challenges. The trial judge is responsible for either granting or denying both types of challenges.

When issuing a challenge for cause, an attorney must communicate to the Court the justification for the challenge. The challenges for cause are intended to eliminate prospective jurors who do not meet the legal requirements for jury service. For example, federal law mandates that jurors must be 18 years or older and U.S. citizens to serve on a jury. In addition, impartiality is another requirement for jury service; jurors must agree to set aside preexisting opinions and promise to decide the case based solely on the evidence presented during trial. Thus, challenges for cause are designed both to eliminate jurors who do not fit the statutory requirements of jury service and to excuse those who express an inability or unwillingness to follow the law in a given case. Both prosecutors and defense attorneys are granted an unlimited number of challenges for cause.

The second mechanism for removing members of the venire panel is through the use of peremptory challenges. The peremptory challenge differs from a challenge for cause in that attorneys are not routinely required to provide justification for the objection. Peremptory challenges may be used to excuse prospective jurors who meet the legal requirements for jury service. Indeed, an attorney may expend a peremptory challenge to excuse a prospective juror whom the attorney believes to be unfavorable to their case but who is not eligible for an excusal for cause. With some exceptions, attorneys may base peremptory challenges on any number of factors, including occupation, physical appearance, and even nonverbal behavior in the courtroom. The number of peremptory challenges allotted to attorneys is limited, and attorneys are usually granted a greater number in high-profile cases. In addition, in some cases, defense attorneys may receive more peremptory challenges than prosecuting attorneys. There are some restrictions to an attorney’s use of peremptory challenges, however. Peremptory challenges may not be used to excuse a member of the venire panel because he or she is a member of a cognizable group. Case law maintains that jurors may not be excluded based on their race (Batson v. Kentucky, 1968), sexual orientation (People v. Garcia, 2000), gender (J.E.B. v. Alabama ex rel. T.B., 1994), religion (State v. Fulton, 1991), or socioeconomic status (Thiel v. Southern Pacific Co., 1946). Despite these rulings, limiting the implementation of peremptory challenges, it is widely acknowledged that the inappropriate use of peremptory challenges, especially with regard to the race or ethnicity of prospective jurors, still occurs.

Voir Dire as a Safeguard

Voir dire is widely considered to be a legal safeguard, helping ensure that verdict decisions are based on evidentiary considerations and not the preexisting attitudes of individual jurors. Voir dire is especially important in cases in which there are concerns about the existence of juror partiality, such as cases that have received a great deal of pretrial media attention. In these types of cases, jurors may hold attitudes that could interfere with their ability to weigh the evidence in a fair manner. For example, if jurors have been exposed to media coverage of a case, it is possible that they may have already formed opinions about the guilt of the defendant prior to the trial. Similarly, research has demonstrated that there are certain types of cases about which jurors have strong attitudes, such as death penalty and child sexual abuse cases as well as cases in which a defendant enters an insanity plea. Research has demonstrated that attitudes toward the death penalty and attitudes toward the insanity defense are related to verdicts in these types of cases. For example, research indicates that jurors who are proponents of the death penalty are more likely to render a guilty verdict than jurors who are opposed to the death penalty. This research indicates that for cases in which jurors hold biases or strong preexisting attitudes, juror judgments are not solely based on the strength of evidence.

For voir dire to be an effective procedure for eliminating biased jurors from the panel, several conditions must be met. First, attorneys must be able to construct questions that accurately assess juror attitudes and tap into juror bias. In addition, jurors’ attitudes must be related to their verdict decisions. Finally, jurors must respond honestly to questions posed to them during voir dire.

Research on the Format and Effectiveness of Voir Dire

Perceptions and opinions about the voir dire procedure are mixed; while some have described it as an essential part of the trial process, others claim that the time and financial resources consumed by this process contribute to a lack of efficiency in the legal system. As the Sixth Amendment guarantees each criminal defendant the right to an impartial jury, it seems certain that some form of voir dire is a legal necessity to assess the venire panel for preexisting biases. However, some critics maintain that the information obtained during the voir dire process is not sufficient or appropriate for identifying juror bias. Therefore, many have argued for a reduction in both the time and scope of voir dire and attorney involvement in the process. Although research on actual voir dire proceedings is limited, an observational study of voir dire in four felony cases found that approximately half the discussion during voir dire concerned jurors’ ability to fulfill their role and remain impartial. The findings in this study suggest that attorneys can be effective at challenging members of the venire panel, who are generally biased against their side. However, it is premature to draw conclusions based on these data as the sample of cases observed was very small.

In addition to debate over voir dire in general, there is controversy concerning the length and scope of voir dire and the level of attorney participation. Proponents of extended voir dire claim that it is necessary to adequately assess juror bias and to provide both parties with enough information to properly exercise peremptory challenges. However, critics of extended voir dire argue that it wastes valuable time and monetary resources in light of the nation’s large backlog of cases. These critics argue for minimal voir dire and limited attorney involvement and claim that the high status of judges and the serious nature that surrounds the questioning will encourage jurors to be forthcoming with information. In addition, opponents of extended voir dire claim that attorneys abuse the voir dire procedure by using it for purposes other than assessing juror bias. Indeed, according to critics, these inappropriate uses include ingratiation and establishing rapport with the jury, obtaining public commitments from jurors prior to the start of the trial, and prematurely presenting case arguments. The most central critique of extended voir dire is that it does not result in a more effective elimination of biased jurors than does minimal voir dire. In addition, although extended voir dire has been shown to reduce perceptions of defendant culpability compared with minimal voir dire after juror exposure to pretrial publicity, research has failed to find evidence that extended voir dire is superior to minimal voir dire in reducing the biasing impact of pretrial publicity on juror judgments.

Despite the failure to demonstrate the superiority of extended voir dire over minimal voir dire as a safeguard, there is evidence to suggest that extended voir dire may be the preferable format for obtaining honest answers from jurors. Although it is possible that minimal voir dire in which a judge conducts the questioning may be more efficient than extended voir dire in terms of time and cost, existing data suggest that judge-conducted voir dire may be less likely to assist in the identification of biased jurors than attorney-conducted voir dire. Mock jury research has demonstrated that participants are more honest and forthcoming when voir dire questioning is performed by an attorney rather than by a judge. This finding is also supported by research on information disclosure in interview settings, which demonstrates that when there is a great amount of social distance between the interviewer and the interviewee, the interviewee may feel pressure to respond in an “acceptable” manner rather than responding honestly. The status differential between judges and jurors is larger than that between attorneys and jurors, suggesting that prospective jurors would be more likely to provide honest responses to questioning by attorneys rather than by a judge. Attorneys are free to move around the courtroom and decrease their physical distance from the venire panel, whereas the large social distance between judges and prospective jurors is exacerbated by the placement of the judge behind the elevated bench.

In addition, research on social interactions also demonstrates that people are more willing to disclose information to people who appear friendly and warm than to those who seem detached and reserved. Judges are compelled by their role to maintain a formal and proper demeanor during trial proceedings, and although they may act in a kindly manner toward the venire members, it would be inappropriate for judges to attempt to curry favor with the jurors. Conversely, attorneys may take advantage of their partisan role and act in a warm, friendly, and sociable manner toward the venire panel. This type of behavior toward the prospective jurors may also work to limit the perceived social distance between attorneys and jurors and to increase disclosure and honesty during voir dire.

Although attorney-conducted voir dire may be a mechanism for eliciting honest information from jurors, there are other obstacles that may impede juror honesty during voir dire. There are several features of voir dire that may serve as demand characteristics, or aspects of the situation that communicate to jurors what behavior is considered appropriate and acceptable. For example, the situational aspects of voir dire communicate to prospective jurors that the judge is in a position of authority, and it is likely that the high status of the judge makes the norm to obey authority salient in this situation. The judge is dressed in a ceremonial black robe, seated at an elevated bench, and addressed as “Your Honor,” highlighting his or her elevated status and official role. Stanley Milgram’s classic research on obedience to authority has demonstrated the potential for this social norm to influence behavior. In addition, several aspects of the voir dire setting communicate the seriousness of the procedure. The courtroom setting is formal and ritualistic. It is likely that ideals such as fairness and impartiality are made salient by the situational aspects of the voir dire procedure. As jurors most likely agree with these ideals, it may be difficult for biased jurors to admit their biases in response to questioning by a judge.

The expectations that attorneys and judges have about jurors’ level of preexisting bias may influence the manner in which they question prospective jurors and influence juror honesty. This is known as the experimenter expectancy effect. Research in this area suggests that when experimenters have a prediction about the results of an experiment, this predic­tion can be unconsciously communicated to participants, which generates hypothesis-confirming behavior from the participants. It is possible that because judges must ignore their personal biases when presiding over a case, they believe that jurors also possess the ability to put aside preexisting prejudices for the trial. Thus, it is possible that if judges expect that jurors will be impartial, this expectation could be inadvertently communicated to jurors, resulting in dishonest answers from the prospective jurors in response to questioning.

As mentioned earlier, for voir dire questioning to be effective in allowing for the elimination of biased jurors from the venire panel, jurors must answer the questions posed to them during voir dire honestly.

However, during voir dire, the common legal practice of juror rehabilitation may be an additional impediment to the honest reporting of juror bias during voir dire. Indeed, when prospective jurors admit to harboring bias, the judge often asks if they can put their biases aside and decide the case based on the evidence. The Supreme Court ruling in Mu’min v. Virginia (1991) simply requires an affirmative response to these questions to demonstrate juror impartiality. Other rehabilitation tactics include reminding the prospective jurors of the grave importance of their civic duty and that the law requires jurors to ignore all preexisting biases and opinions. It is possible that prospective jurors feel pressure to comply with a request from the judge and are uncomfortable reporting that they would be unable to be fair and impartial. It is likely that prospective jurors find it difficult to respond honestly to inquiries about bias.

References:

  1. Batson v. Kentucky, 391 U.S. 145 (1968).
  2. E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
  3. Jones, S. E. (1987). Judge- versus attorney-conducted voir dire: An empirical investigation of juror candor. Law and Human Behavior, 11, 131-146.
  4. Kovera, M. B., Dickinson, J. J., & Cutler, B. L. (2003). Voir dire and jury selection. In A. M. Goldstein (Ed.), Handbook of psychology: Vol. 11. Forensic psychology (pp. 161-175). New York: Wiley.
  5. Marshall, L. L., & Smith, A. (1985). The effects of demand characteristics, evaluation anxiety, and expectancy on juror honesty during voir dire. Journal of Psychology, 120, 205-217.
  6. Mu’min v. Virginia, 501 U.S. 415 (1991).
  7. People v. Garcia, 92 Cal. Rptr.2d 339 (Cal. App. 2000).
  8. State v. Fulton, 57 Ohio St.3d 120 (Ohio 1991).
  9. Suggs, D., & Sales, B. D. (1981). Juror self-disclosure in the voir dire: A social science analysis. Indiana Law Journal, 56, 245-271.
  10. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946).

Return to the overview of Trial Consulting in Forensic Psychology.