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Bar News - June 6, 2008

Attorney-Conducted Voir Dire


History: You (Civil Attorneys) Asked for It; You Got It

For a number of years prior to 2001, New Hampshire trial attorneys practicing civil law vociferously sought the ability to conduct voir dire of potential jurors. In 2001, the New Hampshire legislature authorized a pilot program in Cheshire County and Rockingham County whereby attorneys would be permitted, in civil cases, to conduct voir dire. In December, 2003 a legislative review committee charged with evaluating the pilot program submitted a final report recommending that the program be made permanent and expanded to all ten counties.

In its report, the review committee indicated that "[w]ith very few exceptions, the members of the bar who had participated in a voir dire examination found it to be [a] valuable experience." It also noted that although judges were initially concerned that the process would substantially increase trial time and that attorneys would use the process to improperly "indoctrinate" prospective jurors, such "initial misgivings had proved unfounded." The committee did not, however, address the issue of whether attorney conducted voir dire should be extended to criminal cases, finding such issue to be beyond the scope of its mandate.

It is noteworthy that the committee also recommended that "the State’s only law school be encouraged to include instruction on conducting a voir dire examination in its curriculum."

As a result of the review committee’s recommendations, RSA 500-A, Jurors, was amended, effective January 1, 2005, by the addition of Section 12-a, "Attorney Voir Dire Examination of Prospective Jurors."

The Statute (RSA 500-A:12-a)

The statute provides that in addition to the standard juror examination by the court (see RSA 500-A:12), counsel for each party in a civil case

shall be allowed a reasonable amount of time to address the panel of prospective jurors for the purpose of explaining such party’s claims, defenses, and concerns in sufficient detail to prompt jury reflection, probing, and subsequent disclosure of information, opinion, bias, or prejudices which might prevent a juror from attaining the requisite degree of neutrality required.

The statute addresses both the process and the scope of examination. Following the judge’s initial examination, counsel "shall have the right to examine, by oral and direct questioning, any of the prospective jurors to enable counsel to intelligently exercise both peremptory challenges and challenges for cause." Specifically permitted is "liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case." The scope of examination is within the judge’s sound discretion, but specifically prohibited is "any question which, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law."

The final provision of the statute states that "[u]pon agreement of all parties, the trial judge may waive voir dire examination by counsel…." It is this final provision that seems to have evolved into the rule, rather than the exception.

Constitutionality of the Statute and Application to Criminal Cases:
Reasonable Judges Can Disagree

Shortly after the statute became effective, Superior Court Justice Edward J. Fitzgerald, III issued an order in a civil case, finding the statute unconstitutional. He concluded that the statute "impermissibly intrudes into the procedural rulemaking arena reserved to the courts by…the New Hampshire Constitution." See LeBlanc v. Monadnock Community Hospital, Merrimack County Superior Court, Docket No. 2003-C-0555 (Jan. 29, 2005) (Fitzgerald, J.). Moreover, in light of the statute’s applicability to civil cases only, Judge Fitzgerald also questioned the constitutionality of the statute on equal protection grounds. It appears that this order was not appealed, and I am aware of no other court ruling on the constitutionality of the statute.

The only New Hampshire Supreme Court case referencing the statute is State v. Fernandez, 152 N.H. 233 (2005). In that second-degree murder case, the Court found no error in the trial court’s denial of the defendant’s request that his attorney question prospective jurors. The Court rejected the defendant’s "conclusory argument" that attorney-conducted voir dire was necessary to gain information about juror bias and prejudice so as to meaningfully exercise peremptory challenges. The Court noted that in his brief the defendant acknowledged that "the practice in New Hampshire has been that jury voir dire is conducted solely by the trial judge, except in capital and first-degree murder cases." After citing a case supporting this practice, the Court then cited RSA 500-A:12-a by way of comparison. Thus, the Court was not asked to rule on the constitutionality of the statute.

It appears that the Superior Court judges are not of one mind as to whether attorney-conducted voir dire should be permitted in criminal cases. Requests have been both granted (by myself and other judges) and denied. It may be reasonably (and persuasively) argued that voir dire is more critical in criminal cases – where a defendant’s liberty, as opposed to money, is at stake. On the other hand, the statute does not so provide, and in the absence of statutory direction, judges have exercised their discretion in denying such requests.

The Process

Attorney-conducted voir dire takes place in the context of the "struck" (federal) method of jury selection. In advance of trial, a determination is made as to how many alternates will be needed and how many peremptory challenges will be allowed. So, for example, if two alternates are needed and each side will be allowed three peremptory challenges, the total number of qualified jurors needed is twenty. There will also be a determination as to whether the alternates will be designated at the time of jury draw (that is, jurors in seats #13 and #14 in my example) or designated by random draw at the end of trial.

On the day of selection, the Court briefly describes the case,1 has counsel introduce themselves and their clients, reads the names of potential witnesses, and asks the "standard" voir dire questions, as may be supplemented upon request of counsel.2 As each juror’s name is randomly drawn, the juror is asked whether he or she has any "yes" answers or other responses to the Court’s questions. If the juror indicates "no," the juror is asked to take a seat in the jury box. If the juror indicates "yes," the juror is asked to approach the bench for examination by the Court and potential challenge for cause by counsel. If the juror is found qualified (that is, not excused for cause), the juror is asked to take a seat in the jury box. This process is continued until the total number of jurors needed (in my example, twenty) is seated in and in front of the jury box. It is at this point that counsel each has a turn at examining the seated jurors.

After both counsel have conducted voir dire, they are given the opportunity to request excusals for cause, at the bench. Thus, counsel may argue that a particular juror’s responses during voir dire indicate a bias or other basis for excusal for cause. If a juror is excused as a result, another juror’s name is drawn randomly. That juror is questioned by the Court, and if found qualified, replaces the excused juror. (At this point, the procedure may vary depending on the practice of the judge. I permit counsel to briefly voir dire the substituted juror.) After all requests for excusal for cause have been addressed, counsel then exercise their peremptory challenges against the panel found qualified (in my example, the 20-juror panel). After the peremptories, the clerk impanels the necessary number of jurors (in my example, the first fourteen who have not been challenged) and excuses the remainder.

One Judge’s Experience

In my experience, counsel in civil cases often agree to waive attorney-conducted voir dire. I think this is unfortunate because, if done well, voir dire is invaluable in identifying potential juror problems. It also permits counsel to establish a relationship with the jury and to immediately begin developing trial themes. I believe that agreements to waive are made because counsel are not experienced with the process and think that it requires burdensome preparation. While preparation is obviously necessary, I believe effective voir dire can be done without substantially adding to trial preparation.

I have not found that attorney-conducted voir dire adds significantly to selection time. Generally, each attorney takes about 10 minutes. And while the struck method does take a bit longer than the traditional method of jury selection in New Hampshire, I believe that the modest amount of additional time required is warranted: Counsel can exercise peremptories against a known "universe" of potential jurors (thus avoiding the situation where using a peremptory results in a substituted juror who is even less "desirable" than the juror who was struck). Also, from my perspective, it is better for the Court to learn of a juror problem before trial has begun.

What Works and What Doesn’t

I have seen the voir dire opportunity squandered by counsel lecturing or making a "mini" opening statement to the panel.3 The idea is to get the jurors to respond individually. Making a little speech and asking if everyone agrees will not be productive. Equally ineffective is addressing "prejudice" in a heavy-handed manner.

Counsel who are most effective ask questions relating to trial themes, and ask questions directly of individual jurors. Jurors are surprisingly willing to respond and do not seem to be intimidated by the formality of the courtroom. In fact, many times jurors have seemed to actually enjoy talking about their own experiences and attitudes. With a little finesse, counsel can expose, if not neutralize, many biases and preconceptions without aliening the jurors.

It is my view that attorney-conducted voir dire is an important tool which trial counsel should not forego. Educating oneself on the various techniques is, of course, critical. There is much literature available on the topic, and there are many experienced members of our bar who are willing to share their expertise. Try it; you might like it.

The Honorable Carol Ann Conboy is an associate justice with the NH Superior Court. She has been a Bar member since 1978

1. I have experimented with allowing counsel to give brief case descriptions to the entire
venire before the impaneling process begins. I have found these statements to be more effective than the more generalized case descriptions traditionally given by the Court. If counsel are permitted to briefly describe the case from their relative perspectives, jurors are better able to identify issues which may potentially interfere with their ability to serve.

2. The statute also provides that the Court shall instruct the panel as to "[t]he specific issues for resolution," "[a] summary of the law to be used in their consideration of the evidence," and "[a]ny controversial aspects of the trial likely to invoke bias." Given that all such matters may not be apparent, or even ascertainable, at the time of jury selection, it appears doubtful that such requirements can – as a practical matter – be fully implemented.

3. Such "mini" openings are to be distinguished from case descriptions given by counsel to the entire venire before impaneling begins (which I have found quite effective).


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