Defense Digest

The National

American jurisprudence adopted the French phrase "voir dire" to describe the process of questioning potential jurors in advance of a trial. Courts believed that this process helped to ensure that litigants received a fair and impartial trial. The term voir dire literally means "to speak the truth." Ideally, a potential juror will "speak the truth" as to their background, interests, experience and, most importantly, biases. Most people, however, will not easily disclose their potential biases - especially in front of a roomful of strangers. The voir dire process seeks to disclose these biases, interests and background through the use of effective questions.

Before 1969, plaintiffs and defense attorneys in New Jersey controlled the questioning of the jurors. Attorneys prepared and directly asked questions of the jurors as part of the voir dire process. Many attorneys recognized the incredible opportunity to begin indoctrinating the potential jurors to their theories of the case. Attorneys prefaced questions with argumentative introductions and began to try their case before the entire jury pool during jury selection. Consequently, the New Jersey Supreme Court eliminated attorney-conducted voir dire in 1969 in the case of State v. Manley 54 N.J. 259 (1969). From that point forward, only the trial judge could interrogate the potential jurors, and counsel could supplement the interrogation indirectly. Counsel could no longer communicate directly with potential jurors during the voir dire process. And so the pendulum swung - as usual, it swung too far.

In 2004, recognizing that trial courts often conducted jury selection in a hasty and non-informative manner, the New Jersey Supreme Court determined that the voir dire process needed review. State v. Fortin, 178 N.J. 540 (2004). The Supreme Court stated, "Expedience can never trump the considered and thoughtful selection of jurors whose impartiality and fairness must be beyond reproach."

The New Jersey Supreme Court recognized that, as a practical matter, jury selection issues did not get litigated in the appellate courts unless the case involved a significant criminal matter. Consequently, jury selection standards did not get reviewed by the appellate courts with any regularity, and the jury selection process suffered. The Supreme Court created a Special Committee on Peremptory Challenges and Jury Voir Dire to evaluate the voir dire process in New Jersey and to draft a report containing recommendations. The Supreme Court charged the Special Committee on Peremptory Challenges and Jury Voir Dire to create standards for model jury selection.

The Special Committee issued an Initial Report in 2005 which contained Basic Standards for Model Jury Voir Dire. Those Basic Standards included the following:

a.  Jury voir dire procedures should be mandatory;

c.  Standard questions developed as base line questions, and attorneys should be permitted to submit supplemental questions;

d.  Court should conduct voir dire conference with counsel prior to jury selection;

e.  Follow up questions with potential jurors should be conducted at sidebar so as not to potentially taint the jury panel;

f.  Court should liberally grant exclusions for cause when warranted; and

g.  Court should not undertake extraordinary efforts to rehabilitate a prospective juror.

In December 2006, the New Jersey Supreme Court approved Directive 21-06 creating Standards for Jury Selection. The Special Committee issued Directive 4-07 to modify and supplement the original directive on May 16, 2007. The Special Committee believed that questions that elicited greater verbal feedback from jurors should be required since these types of questions provide the court and counsel with the opportunity to observe the demeanor, facial expressions and mannerisms of a prospective juror. These cues assist counsel in assessing the appropriateness of a prospective juror. The Special Committee required the use of three types of model questions:

1. Pedigree - Yes or No questions - requires court to follow up to obtain more information based upon juror response.

2. Tailored - Questions related to the theories of liability or damages involved in the case. These questions are more specific to the facts and circumstances surrounding the specific case and are open-ended questions which invite narrative responses.

3. Open-ended - The court must ask at least (3) three open-ended questions in order to assess the juror's attitudes, reasoning ability, capacity to remember and to help counsel ascertain any possible biases or prejudices, assess the juror's demeanor, body language and facial expressions.

In civil cases, counsel may elect to waive the procedures created by these Directives. It does not seem to be prudent for a civil practitioner to agree to waive the voir dire procedures created by the Directives unless the attorney already knows the trial judge's jury selection procedures and is comfortable proceeding with those jury selection procedures. The Directive procedures are intended to provide counsel with potentially greater insight into the prospective jurors for the trial. Any opportunity to obtain additional insight into the potential jurors seems to be a valuable opportunity for counsel on both sides of the aisle.

From a practical perspective, the model voir dire procedures do take more time for jury selection. This delay can create witness availability problems, particularly with the often very tight windows for scheduling expert witnesses for trial testimony. Counsel may short circuit some of these delays by submitting proposed voir dire to the court electronically in advance of the voir dire conference with the court.

The Special Committee drafted Standard Jury Voir Dire Questions for Criminal Trials, Civil Trials in General and Civil Personal Injury Trial as well as Standard Biographical Questions. The Committee also drafted examples of Open-Ended Questions for Civil and Criminal Trials. One Example of a Standard Open-Ended Question for a Civil Trial is:

How do you feel about the jury system? Do you think lawsuits would be better decided by some sort of professional hearing officers, arbitration panels or judges? In our country, under our Constitution, in such cases as this one, people have the right to a jury trial. If it were up to you, should that right continue to exist or be eliminated?

The number of lawsuits tried to verdict by a jury continues to decrease in New Jersey because of tort reform, arbitration agreements and the cost-effectiveness of alternative dispute resolution, among other factors. Generally, in the civil realm, only cases involving significant potential exposure find their way before a jury. Given the higher stakes involved in the civil cases actually being tried, counsel should take advantage of every opportunity to assist their clients in obtaining more information about the potential jurors.

*Paul is a shareholder in our Cherry Hill, New Jersey, office. He can be reached at (856) 414-6008 or pcjohnson@mdwcg.com.