Grades 7-9: Due Process Freedoms
Voir Dire Simulation
by Julie Van Camp
Voir dire is one of the most important aspects of any trial. Many attorneys feel that jury selection is the single most significant procedure in the entire trial process. The purpose of voir dire questioning is to obtain a fair and impartial jury. The selection process in which prospective jurors are questioned and challenged for bias can turn out to be a battle of wits and maneuvering more dramatic than the trial itself.
The ultimate objective of voir dire is to ferret out the prejudice and bias that lurks in some areas of the thinking of every juror. Jury selection" is a misnomer. With a few peremptory challenges allotted, we do not "select" juries. We merely spend our few challenges to eliminate the jurors most likely to be prejudiced.
Also, jury selection is a matter of personal judgment and the use of the wits of the trial lawyer, whose judgment and instincts in the voir dire will be colored of necessity by her or his own experiences and knowledge of human nature, and personal prejudices and biases.
"Why should anyone think that 12 persons brought in from the street, selected in various ways for their lack of general ability, should have any special capacity to decide controversies between persons," asked formed United States Solicitor General Erwin Griswold. Yet, More often than not, most observers agree that when jurors are left to apply their experiences and common sense to the evidence presented to them, they render as impartial a brand of justice as is humanly possible.
Sometimes in the United States, many potential jurors are called to the jury box before twelve are chosen. In England the judge calls the first twelve potential jurors and simply asks one question: "Can you give a fair hearing to both the crown and the defense?" If they can, they are impaneled as part of the jury.
In this country, the questioning process, called voir dire from the French term which means "to tell the truth," is far more elaborate and involves judges and attorneys. The purpose of the voir dire is to determine disqualifications and ensure an impartial jury which represents a cross section of the community. It is not to afford anyone an in-depth analysis so he or she can choose a jury that fits some particular mold or pattern that the person desires.
Prospective jurors may be challenged for cause if they exhibit a bias for or against one of the parties. For example, jurors may be disqualified if they are related to one of the parties or the attorneys, or if they stand to benefit directly or indirectly by a decision for one side or the other, or if they have formed an opinion in the case. A certain number of challenges without cause, which are called peremptory challenges, are also allowed each side. In North Carolina, for example , the state and the defendant each have fourteen peremptory challenges in capital offenses and eight in noncapital offenses. In civil cases each side is allowed eight peremptory challenges. Jury selection in some very complicated cases can take almost as long as the trial itself. In one California murder trial of three defendants, it took five months to question more than 250 potential jurors. The actual trial took seven months.
In North Carolina the first twelve persons called are examined by the prosecutor, or the plaintiff's attorney in a civil case, for both cause and peremptory challenges.
If challenges are exercised, the person challenged is replaced in the jury box by another potential juror. When the prosecutor or plaintiff's attorney is satisfied, the same process is repeated by the defendant's attorney. If juror replacements are made at this point, the other side gets to pass or reject the replacement(s). This process continues until each side is satisfied or they have run out of challenges.
North Carolina law states that challenges for cause must focus on competence, prejudice, or fairness. The scope of examination of jurors is subject to the sound discretion of the court.
Some companies now specialize in assisting trial attorneys in applying psychological techniques to determine the type of juror an individual will be. In fact, sometimes "shadow" juries are chosen that reflect similar characteristics to the actual jury. This jury observes the trial and provides feedback to the lawyers trying the case. Critics of these practices feel that it represents an unconstitutional manipulation of the justice system and is a costly process that favors the rich over the poor.
There are numerous social and psychological factors that enter into the selection of a jury. Studies have shown that women are thought to be more sympathetic to the defense, men to the prosecution. The wealthy are thought to be more sympathetic to the prosecution, the poor to the defense. Ethnicity and race are thought to be important, also.
Julie Van Camp is an educator now living in Lopez Island, Washington.
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