12. VOIR DIRE
Section 8.01-358. Voir dire examination of persons called as jurors.
The court and counsel for either party shall have the right to examine under oath any person who is called as a juror therein and shall have the right to ask such person or juror directly any relevant question to ascertain whether he is related to either party, or has any interest in the cause, or has expressed or formed any opinion, or is sensible of any bias or prejudice therein . . .
Voir dire is vitally important. It allows the attorneys to develop rapport with the jurors, to show your fairness and sportsmanship, to educate the jurors, to minimize potentially difficult parts of your case and to identify potential "strong personalities" among the panel.
If you have anything in your case that really stinks; for example, a witness with a bad record, bring it out in voir dire.
Explain, in the form of a question, reasonable doubt and the presumption of innocence.
Describe the full range of punishment.
Expose the possibility of race issues, particularly in Batson v. Kentucky situations.
Determine if there is prejudice against laws, i.e., drug laws.
If there are particularly vicious facts, or gory photographs, mention them in voir dire. A question with a predicate about the existence of the photos and whether they would create a response so intense as to make the panel less than objective can negate a significant portion of the impact of these photos.
A. Race.
Voir dire concerning racial prejudice and possible prejudice concerning sex may be constitutionally omitted if the case does not have such overtones. See Rosales- Lopez v. United States, 451 U.S. 1982 (1976). However, note Turner v. Murray, _____U.S. _____, 54 USLW 4411, interracial crime, that is black defendant/white victim constitutes a special circumstance entitling questioning as to possible racial bias. In Reynolds v. Commonwealth Record No. 0517-86-1, Va. Ct. Of App., it was found that such an interracial issue entitles the defendant to a "searching" voir dire to insure an untainted venire.
B. Pretrial Publicity
Every Circuit, save the Fourth, has found that a potential juror cannot properly assess his or her own level of possible prejudice as a consequence of exposure to pretrial publicity. The usual, "have you read anything that has caused you to form a bias or prejudice and can you follow the instructions of the court?", is insufficient. The recommended procedure in every other circuit, and as yet undecided in the Fourth, is to separate the jurors and recall those with exposure for individual voir dire as to what was seen or heard, and whether the opinions contained had been discussed or overheard by the venireman. During this individual voir dire tremendous effort can be asserted to weed out potentially tainted jurors and to educate peripherally exposed jurors.
What did you see or read? Get as specific as possible, determine the source and exactly what was seen. If you do not want the juror, determine whether the case was ever discussed, possibly with the spouse or co-workers and whether anyone stated an opinion or the venireman stated any opinion. It is a simple procedure to get the venireman off of the panel with this information.
The purpose of voir dire is to determine whether there exists prejudice against your client or the law to a degree that there could not be a fair trial.
C. Some Recommended Voir Dire Question: Defense
How many of you have prior jury service?
Criminal or Civil?
Do you recognize, those of you with prior jury service, that the burden is on the Commonwealth to prove each and every element beyond a reasonable doubt and that standard is significantly harder or greater than the burden of proof in a civil case?
Do each of you understand that the burden is always on the Commonwealth and it never shifts to the defense?
Are there any of you that disagree with the law that states the defendant need not say or prove anything and the Commonwealth must proceed to prove its burden?
Do you understand that if you feel or have a "hunch" that the defendant is guilty of the offense but you are not cognizant of the evidence to convince you, you must acquit?
The defendant is entitled under law to consideration of his guilt or innocence by twelve separate and equal jurors, not ten or six, but twelve. Are there any of you present who, if in a minority, would change your decision from not guilty to guilty because of time, other engagements, or because you are in the minority?
Do any of your have any family members or personal friends that might visit your home or your place of business who are involved in law enforcement? If so, do they ever discuss their work with you?
The defendant is charged with rape; the range of punishment is not less than five years nor more than life. Are there any of you who, if you found the defendant guilty of rape, could not consider the full range of punishment, that is, you could not consider a sentence of five years?
Are there any of you who have ever been the victim of a crime? If so, was someone arrested, did you testify and was there a conviction? If, so, were you satisfied with what happened and, without getting into a speech, did you feel that justice was done?
Are there any of you who would believe a police officer, merely because that person is a police officer, more so than you believe the testimony of any other citizen?
During the trial of this case you will see photographs of death, (or hear evidence of rape, hear from an injured child, etc. etc.) With blood, they will probably disturb you. Are there any of you on the panel who after seeing photos like this doubt your ability to be fair and impartial during the trial of this defendant?
D. Some Recommended Voir Dire Questions: Prosecution
Are there any panel members who, for personal religious moral reasons, feel that it is improper to judge other people?
Are there any members of the panel who after having the Commonwealth prove its case, beyond a reasonable doubt, could not consider the full extent of the punishment allowed; that is, from the least to the most severe?
Many people feel that circumstantial evidence is not a good as good as direct evidence. Are there any of you who could not convict with solely circumstantial evidence even if proved the guilt of the accused beyond a reasonable doubt?
Are there any of you on the panel that have a distrust of or dislike for government agencies or law enforcement, for whatever reason, to a degree that it would inhibit your ability to be fair and impartial?