February 28, 2017

Voir Dire Process

In a Jan. 31 letter to the Advisory Committee on Civil Rules, the ABA suggested an amendment to Rule 47(a) of the Federal Rules of Civil Procedure to require that the parties at trial or their counsel be allowed the opportunity to question prospective jurors directly during the voir dire process under the supervision of the court and subject to reasonable time limits. In the letter, ABA Governmental Affairs Director Thomas M. Susman explained that the proposed amendment is included in Principles for Juries and Jury Trials, which were developed by the ABA American Jury Project and adopted by the association in 2004. Rule 47(a) currently states that the court “may permit the parties or their attorneys to examine prospective jurors or may itself do so,” and while some federal district court judges permit direct questioning by counsel, others often preclude questioning by counsel when they exercise their discretion under the rule to conduct all direct questioning themselves. “It is important to realize,” Susman wrote, “that a trial judge likely knows far less about a given case at the time of voir dire than the lawyers who have prepared the case for months or years,” and that “busy tough diligent judges cannot be expected at the outset of trial to appreciate all the significant matters on which jurors should be examined for bias.” He also emphasized that research shows that potential jurors respond more candidly and are less likely to give merely socially desirable answers to questions from lawyers than from judges. In addition, he pointed out that research indicates that, under court supervision, attorney–conducted voir dire does not take substantially more time than voir dire conducted only by the court.

 

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