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Wednesday, November 09, 2005

Voir Dire of the Jury--Battle Ground at the Beginning of the Case

Judge Mark King Leban in Florida issued a memorandum containing GUIDELINES FOR VOIR DIRE EXAMINATION IN JURY TRIALS

He seems to believe one of the big problems with voir dire is attorneys attempting to get a judgment during voir dire rather than determine whether the panel is fair and qualified:

Problems in voir dire examination of prospective jurors arise in the posing of hypothetical questions . . . requesting the jury to commit itself to a particular verdict if a given set of facts is presented, and in preconditioning the jury to render a particular verdict.

He goes on to say:

It is clear that "it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced." Dicks v. State, 83 Fla. 717, 93 So. 137, 137 (1922). [Emphasis added]. The Florida Supreme Court in Dicks further held that to ask a juror a question "purporting to contain an epitome of the testimony subsequently to be introduced, and ask whether he would acquit or convict upon such testimony, would have the effect of ascertaining his verdict in advance of his hearing the sworn testimony of the witnesses." Id.

Drawing the proper, but difficult, line in this area takes a great deal of skill by the trial judge. But let's face it, voir dire is not closing argument and the line needs to be drawn or the case can effectively be over before it starts. If the judge doesn't intervene when they should, then it becomes a matter of the advocate on the other side fighting fire with fire.

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