Voir Dire

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VOIR DIRE

Voir dire (Old French: "to speak the truth") refers to the questioning by the court or counsel of prospective jurors to determine their qualification for jury service.

Two types of objections may be raised to disqualify prospective jurors: peremptory challenges and challenges for cause. A peremptory challenge allows dismissal of a juror without cause. Most states provide each side with twenty such challenges for a capital offense, and a lesser number for other felonies and misdemeanors.

A challenge for cause requires the challenging party to prove potential prejudice to the case if the challenged juror should be accepted. There is generally no limit to such challenges. The typical statute permits such an objection if the juror is of unsound mind, lacks the qualifications required by law, is related to a party in the litigation, has served in a related case or grand jury investigation, or has a "state of mind" that will prevent him from acting with impartiality.

In Wainwright v. Witt (1985) the Supreme Court stated that the standard to determine when a prospective juror should be excluded for cause is whether the juror's views would prevent or substantially impair the juror's duties in accordance with hisher instructions and oath.

Commonly, a prosecutor calls and examines twelve veniremen, exercises his challenges for cause and peremptory challenges, replaces those excused with others, and then tenders a group of twelve to the defense. The defendant follows a similar procedure. This process continues until the parties have exhausted their challenges or expressed their satisfaction with the jury.

Voir dire proceedings are usually open to the public. In Press-Enterprise v. Superior Court (1984) the trial judge had ordered that all but three days of a six-week voir dire for a rape-murder trial of a teenage girl be closed to the public and press and had refused to grant the defendant's pretrial motion for release of the voir dire transcript. The Supreme Court unanimously reversed, holding that voir dire proceedings in criminal trials should be presumptively open to the public, unless fair trial interests would be better served by closure.

Voir dire vests broad authority in the trial judge. A judge may refuse to allow questions deemed irrelevant or inappropriate. The Constitution, however, requires certain inquiries. In Ham v. South Carolina (1973) the Supreme Court held that where racial issues permeate or are inextricably bound up in a trial, the defendant is entitled to questioning specifically directed at racial prejudice. In Ristano v. Ross (1976), however, the Court held that this right does not extend to all cases in which the victim and the defendant are of different races. Questioning about general bias or prejudice will normally suffice. The Court held in Rosales-Lopez v. United States (1981) that judges may decide on a case-by-case basis whether racial overtones justify such questioning.

Finally, voir dire violates due process if its exclusion of a particular group seriously detracts from the jury's impartiality and ability to reflect dominant community values. In Witherspoon v. Illinois (1968) the Supreme Court invalidated a statute that had the effect of screening out jurors not enthusiastic about capital punishment, but accepting those who were. Jurors may constitutionally be disqualified, however, by expressing an absolute refusal to impose the death penalty.

Charles H. Whitebread
(1986)