Expanding Voir Dire

The Sixth Amend­ment to the U.S. Con­sti­tu­tion pro­vides that in a crim­i­nal trial the accused shall have the right to “an impar­tial jury of the State and dis­trict wherein the crime shall have been com­mit­ted.…”  Voir dire, which means “to speak the truth,” is a pro­ce­dure that is designed to achieve an impar­tial jury.  It is the process where mem­bers of the com­mu­nity, drawn at ran­dom, are ques­tioned about their abil­ity to serve on the jury in an impar­tial man­ner.  How­ever, many courts have been sharply lim­it­ing the abil­ity of attor­neys to con­duct voir dire.

This recent trend of nar­row­ing the scope of voir dire is lam­en­ta­ble.  Regret­tably, many Amer­i­can cit­i­zens still have deep prej­u­dices when it comes to race, reli­gion, gen­der, and national ori­gin.  For instance, watch this video of a woman ver­bally assault­ing a Mus­lim man fol­low­ing a traf­fic dispute:

With­out robust voir doire, it is often impos­si­ble to dis­cern which prospec­tive jurors might pos­sess such alarm­ing views as the woman in the above video.  In cases that involve issues of race, crime, abuse of power, or other con­sti­tu­tional rights, the prej­u­dices har­bored by a prospec­tive juror might pre­vent them from fol­low­ing the law.  Although the law sup­poses that jurors will fol­low a judge’s instruc­tions, deeply-seated prej­u­dices and biases will almost always have an undue influence.

In order to ensure that our jurors are truly impar­tial, courts should encour­age, rather than cir­cum­scribe, the abil­ity of lawyers to con­duct voir dire.  Courts should also use sup­ple­men­tal ques­tion­naires because poten­tial jurors may be more likely to be truth­ful in response to a writ­ten ques­tion­naire than con­fess­ing their prej­u­dices in open court.  Regard­less of the method, lawyers should be given sig­nif­i­cant lat­i­tude to ques­tion prospec­tive jurors so as to uncover bias, and to ensure that the jury panel is “impartial.”