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Bar News - August 23, 2013

Opinion: Extend voir dire to criminal cases


As a criminal litigator, I continue to feel that I am treated as a second-class citizen when it comes to jury selection. While my civil colleagues have had the power to directly question prospective jurors since 2005, I am only allowed to do so depending on the luck of the draw – the draw being which judge is presiding over my case.

The jury selection procedure in New Hampshire lacks parity. In civil cases, counsel-conducted voir dire is authorized by statute, but in criminal cases, there is no such right. Some judges allow counsel-conducted voir dire in criminal cases on request. Others will refuse as a matter of course. I believe that counsel-conducted voir dire is a basic tool that all attorneys should have in their arsenal to select a jury “as impartial as the lot of humanity will admit,” and this right should be extended to criminal cases, where life and liberty are at stake.

In 2002, a pilot project was conducted in Rockingham and Cheshire Counties where counsel in civil case were allowed to question potential jurors. 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.” As a result of the success of this project, RSA 500-A:12-a was amended effective Jan. 1, 2005.

In criminal cases, the selection procedure has not changed in many courts. Counsel can only submit questions to the judge. Those questions are then read to the entire panel. Individual prospective jurors must then volunteer to approach the bench in front of more than 100 others and explain to the judge why she may be biased or prejudiced. If a juror does not volunteer, whatever issue that could render the juror unacceptable is never revealed and that person will sit in judgment.

When there is counsel-conducted voir dire, a group of pre-qualified jurors is seated, and counsel for each side is given time to personally question the jurors about issues that they may face in the case and to explore areas of potential prejudice. This is more of a dialogue with the jurors, rather than interrogation, and no juror can avoid having potential bias explored.

Counsel-conducted voir dire is important. As the United States Court of Appeals for the 5th Circuit noted in United States v. Ledee, “[W]e must acknowledge that voir dire examination in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties.

A judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case. The court does not know the strength and weaknesses of each litigant’s case. Justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed.”

Several years ago, then-Superior Court Justice Carol Ann Conboy wrote an article for the Bar News in which she shared her positive experiences with counsel-conducted voir dire.

She noted that this process did not add significantly to the time it takes to select a jury and that, when done correctly, is an invaluable tool in uncovering juror prejudice. She went on to opine that “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.”

The NH Supreme Court addressed the lack of parity between voir dire in civil and criminal cases in State v. Wamala, 158 NH 583 (2009). The Court concluded that there is no right to this procedure in criminal cases and that the Legislature could “rationally have decided to change the requirements for voir dire incrementally, starting with civil trials, before expanding the change to criminal trials.”

It is time to expand this process to criminal cases. If use of this procedure is important in civil cases, then it is imperative in criminal cases. Yes, the selection process will take a bit longer.

If our goal, however, is to empanel jurors as free from prejudice and bias as possible, then this is a small price to pay.

James H. Moir

James Moir has practiced criminal defense in Concord for 29 years. He is a graduate of the University of Pittsburgh School of Law and adjunct professor of trial advocacy at the University of New Hampshire School of Law.

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