Bar News - July 16, 2014
New Law Allows Panel Voir Dire in All Criminal Trials
By: Kristen Senz
All trial attorneys in New Hampshire will have the right to question panels of prospective jurors as part of jury selection starting Jan. 1, 2015. The right was extended to criminal attorneys in a bill Gov. Maggie Hassan signed into law last month.
Civil litigators have been able to conduct panel voir dire since 2005, but nearly 90 percent of them still voluntarily waive the opportunity to question potential jurors, according to court officials.
Criminal defense attorney Mike Iacopino and Katherine Cooper, director of the NH Association of Criminal Defense Lawyers, approached Rep. Gary Richardson, a civil trial attorney, about sponsoring the new law this past legislative session.
“Many judges were already permitting it, but some judges were not,” Iacopino said. “We believe that [attorney-conducted] voir dire is the best method for determining how to exercise your peremptory challenges. It’s better to find those jurors that are going to be problematic at the beginning, rather than at the end.”
Richardson, who handles medical malpractice work at Upton & Hatfield, said the bill sailed through the Legislature; a similar bill previously failed to emerge from committee.
“I was a little surprised that it didn’t draw much opposition,” he said, “but I think because it has worked well in civil cases, people were receptive to the idea, and it went through pretty easily.”
With panel voir dire becoming the norm and attorneys becoming more accustomed to the unique dynamic it creates, many lawyers and judges expect to see it occur more frequently in both civil and criminal trials.
NH Superior Court Chief Justice Tina Nadeau said the process can lead to better justice. “I have to say that I do think it results in fairer juries,” she said.
During panel voir dire, attorneys can probe jurors’ ideas about the specific subject matter of a case, not just their general connections to it, as questions by the court tend to do. For example, a potential juror may not have a family member in law enforcement – something the court usually asks – but he or she may have a deep-seated hatred or mistrust of police.
“What the voir dire process does is allows you to eliminate the really extreme people on either side of the issue,” said Richardson. “You really want a jury that’s going to be open-minded, and if you get somebody that is extremely prejudiced in one direction or another, even if they’re prejudiced for you, they may end up causing a mistrial, or an unjust verdict.”
“We would all like to think that juries are made up of nice, average people,” he continued, “but the truth is there is a small number of – I’m going to call them bizarre people – that are just outside the mainstream.”
Attorney-conducted voir dire generally takes about 10 minutes per side, but the laws don’t allow for specific time limits. However, judges always have discretion to create boundaries around the questioning.
Nadeau said she encourages lawyers who conduct voir dire to ask the trial judge afterwards whether he or she thinks it was effective. Attorneys can also ask jurors for their feedback 30 days after the trial has concluded.
According to Richardson, “The most effective voir dire happens when you engage people in conversation, like you normally would on the street... You just try to have a casual discussion. What I have found most effective is if I can get the conversation going and then get the jurors talking among themselves... and I’m just standing there listening and watching for anybody who’s really totally off the wall.”
Iacopino said he has never conducted panel voir dire, but he has participated in questioning potential jurors individually during murder trials. Still, he said, he doesn’t plan to waive the right to do it, now that the law allows for it in every trial.
“I see no reason not to use it in any type of case,” he said. “If it’s done properly, you will understand more about who your jurors are, you will have a better jury, get better justice and have more information about how to exercise your peremptory challenges.”