Voir dire is the process of selecting the jurors for a specific case

By Jill K. Sanders, Esq.

In New York, lawyers can question prospective jurors to determine their qualification for service. This questioning process, called voir dire, is important to the criminal defendant. Voir dire is essential to the selection of a fair and impartial jury. Additionally, it can also help set the stage for a successful defense.

How Does Voir Dire Work?

After arriving for jury duty, potential jurors are randomly selected to possibly sit on a jury. As a next step, the judge will ask certain questions. Thereafter, attorneys are permitted to give a summary of the case and ask jurors questions – the voir dire. After such questioning, attorneys can request jurors be removed for cause. There are also peremptory challenges, where an attorney does not have to give a reason for asking for that juror’s removal.

In essence, voir dire is to determine if a juror can be fair and impartial. For example, voir dire can ascertain if a juror has a bias, prejudice, or some other reason why that person can’t be fair or impartial. Where a criminal defendant’s freedom is on the line, routing out such bias is of ultimate importance.

What is a Fair Juror?

In determining whether a juror is fair and impartial, there are certain things a judge and the lawyers will consider.

• Can they accept and apply the applicable laws?
• Do they have a bias or prejudice against or in favor of a party or witness?
• Will the juror make any judgments based on a person’s race, color, national origin, ancestry, gender, gender identity or expression, religion, religious practice, age, disability, or sexual orientation?
• Do they allow stereotypes or attitudes to affect their judgments?
• Can they only use the evidence presented in reaching a verdict?
• Will they only make their judgment after hearing all the evidence and law?
• Can they render a verdict consistent with the evidence and law without fear, favor, bias, prejudice, or sympathy for either the People or the defendant or any witness?

What Is Asked During Voir Dire?

During voir dire, there are certain statutory requirements that must be asked of jurors. For instance, this includes whether a person is a US citizen, resident of the jurisdiction, over age 18, able to understand and communicate in English, and has no prior felony conviction. Additionally, they must have no relationship to the case or the trial participants. Moreover, a juror must be available to attend all stages of the trial as required.

Depending on the nature of the criminal case, certain voir dire questions can be asked to bring out information that may be relevant to the juror’s view of the case. An experienced lawyer knows what to ask. For example, it is often asked if a juror would view a police officer as being always truthful. In other cases, it may be relevant to ask if a juror has been a victim of a crime.

There are other areas of possible questioning. For instance, it may be necessary to determine a juror’s views about issues in the case or about witnesses who may testify. Or, if a juror is a professional in some area it may be necessary to ask if they can lay aside their professional knowledge in viewing the evidence.

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• Posted on: 17 Sep, 2019
• By Orrin Johnson
• Amendments
• (0) Comment

The Sixth Amendment to the U.S Constitution as well the laws of every state gives the right to trial by jury in any criminal case. In selecting juries, a process called “voir dire” occurs, which means “to speak the truth.”

In voir dire, judges and attorneys of both sides question potential jurors to determine if they’re able to serve the case. Unfortunately, errors can occur during the selection process and are often used as grounds for appeal in criminal cases.

Let’s elaborate on the process of voir dire:

Questioning the Jurors

When a trial is called, randomly selected jurors called venire are seated in the courtroom. Here, a trial judge begins the process of voir dire, asking each juror different questions. This process is to make sure they’re qualified to serve as the jury and that the service will not harm them. For example, an excuse is given to students who might miss a critical exam because of the service.

Following this, the lawyers on each side will question each of the jurors about their backgrounds and biases. These questions also include any pre-existing knowledge the juror might have on the case. The attorney’s job is to uncover any factor that can cause the juror to favor either the defense or the prosecution. However, overly sensitive and overly personal questions are not allowed to be asked by a lawyer. They also cannot ask the juror how they would conclude either.

Challenges to the Venire

Once questioning is completed, any unqualified jurors will be removed from the venire. Lawyers do this by making peremptory challenges and challenges for cause.

Challenges for Cause

This type of challenge is only made if a juror is found to be unqualified to act as a jury. Generally, lawyers can make an infinite amount of “for cause” challenges.

To be able to serve as a juror, the individual has to be a U.S. citizen, is over 18 years of age, lives in the court’s jurisdiction, and has the right to vote. The person must also be able to sit down for the duration of the trial, and listen to and understand the testimonies presented in the trial. A juror must also be capable of comprehending and applying the judge’s legal instructions. If any of these criteria is unmet, a “for cause” challenge can be made.

Judges will also dismiss jurors on the basis that they’re unable to use the law impartially. In other words, jurors who are biased, whether implied or actual, will be removed. Actual bias means that jurors admit they cannot act impartially. For example, a juror is unable to vote for a guilty verdict because of religious reasons.

As for implied bias, a juror is unable to act impartially due to certain characteristics or personal experiences. For example, a juror who is a close friend to a critical party is removed. This is regardless of whether he or she can make an unbiased decision.

Peremptory Challenge

This type of challenge does not require the lawyer to have a reason to dismiss a potential juror. Peremptory challenges allow lawyers to remove jurors that may be qualified but seem to favor a party. However, peremptory challenges cannot be made based on the juror’s race or class. Also, there are a certain number of peremptory challenges a lawyer can make, and that depends on the state and nature of the case.

The members of the jury go through a painstaking process to make sure that the final decision is as unbiased and impartial as possible.

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The right to trial by jury in criminal cases is guaranteed by the Sixth Amendment to the U.S. Constitution, as well as the laws of every state. (See The Right to Trial by Jury.) Lawyers and judges select juries by a process known as "voir dire," which is Latin for "to speak the truth." In voir dire, the judge and attorneys for both sides ask potential jurors questions to determine if they are competent and suitable to serve in the case. Errors during jury selection are common grounds for appeal in criminal cases.

Questioning Jurors

When a case is called for trial, a randomly selected panel of potential jurors (called a venire) is seated in the courtroom.

The trial judge begins voir dire by asking the prospective jurors questions to ensure that are they are legally qualified to serve on a jury and that jury service would not them cause undue hardship. For example, most states allow a student who might miss critical exams, a person who has an upcoming surgery scheduled, or someone who serves as sole caretaker of an ill or elderly family member to be excused from jury service for undue hardship.

Next, the lawyers for each side question the potential jurors about their biases and backgrounds, as well as any pre-existing knowledge they might have about the case. The attorneys can also ask questions designed to uncover characteristics or experiences that might cause potential jurors to favor either the prosecution or the defense. But the lawyers aren't allowed to ask overly personal questions, and they aren't allowed ask the jurors how they would decide the case in advance.

Challenges to the Venire

After they have completed questioning, the lawyers begin removing potential jurors from the venire by making challenges for cause and peremptory challenges.

Challenges for Cause

Challenges for cause are made when voir dire reveals that a juror is not qualified, able, or fit to serve in a particular case. Lawyers generally have an unlimited number of "for cause" challenges available.

In order to serve as a juror, a person must be a U.S. citizen, over the age of 18, live in the court's jurisdiction, and have the right to vote. Also, each person must be able to physically sit through the entire trial as well as hear and understand the trial testimony. Jurors must also be mentally aware enough to comprehend and apply the judge's legal instructions. Any person who doesn't meet these criteria will be dismissed "for cause."

Judges will also dismiss jurors who can't put aside their feelings and apply the law impartially—that is, without actual or implied bias.

Actual Bias. Actual bias arises when potential jurors admit that they wouldn't be able to be impartial. For example, a juror who states that she would never vote for a guilty verdict in any case because her religious beliefs prevent her from sitting in judgment of another would be excused for cause.

Implied Bias. Implied bias is present when potential jurors have character traits or personal experiences that make it unlikely for them to be able to be impartial, regardless of what they say during voir dire. So, a juror who is a close friend or relative of a key party, a witness, the judge, or an attorney for either side will be dismissed for cause. Bias is also implied when a would-be juror's background or experience is likely to create a predisposition in favor of a party to the case. For example, in a case involving school teachers accused of fraudulently misrepresenting standardized test scores, any teachers in the panel will probably be excused for cause (even if those teachers swear in voir dire that they can be impartial).

Peremptory Challenges

No reason is required for a lawyer to use a peremptory challenge to excuse a potential juror. Such challenges allow each side to dismiss jurors who are otherwise qualified, but appear likely to favor the opposing party. However, peremptory challenges cannot be used to exclude jurors on the basis of race or class. Lawyers only have a specified number of peremptory challenges available—that number varies from state to state and depending on the nature of the case (a misdemeanor, felony, or death penalty trial).

Striking the Jury

In the process known as "striking a jury," the prosecution and defense take turns arguing their challenges for cause. If the judge grants a challenge, the juror will be struck from the jury panel. Once there are no more viable challenges for cause, the sides alternate in striking jurors via peremptory challenges until those are exhausted or each side is satisfied with the jury panel. Some states require all challenges to be made orally, while others allow for written peremptory challenges.

The states vary in the number of jurors required for a jury, ranging from six to 23. If too many potential jurors have been eliminated after the use of challenges, the judge can either summon additional potential jurors or declare a mistrial.

Once the challenges are completed and there are enough jurors for a proper jury, the judge will place the remaining jurors in the jury box.

If the attorneys have any challenges to the demographic composition of the jury (claims that the other side used peremptory strikes to eliminate jurors on the basis of race, ethnicity, or gender), they must assert them at this time. Then, the jurors are sworn in, which ends jury selection and begins the next stage of the trial process.