BENCH BLOG: Judges’ perspectives on voir dire

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Voir dire is subject to judicial control and discretion, so it pays to know your judge.

Circuit court judges also are a valuable resource for spotting trends in voir dire.

The length of voir dire has been trending downward for more than a decade. Short voir dire time limits are more likely to be imposed in counties with heavy dockets and in cases that are less serious and less complex.

For example, in the late 1990s, Judge Kitty Brennan of Milwaukee County, now on the District I Court of Appeals, allowed each attorney five minutes to question the venire panel in misdemeanor cases.

A shorter voir dire also is expected with a shorter trial.

“Especially during a one-day trial,” reports Judge Guy Dutcher of Waushara County, “I try to move the process along so that we aren’t taking an inordinate amount of time. I don’t want us droning on into the night.”

A more extreme method of shortening the time for voir dire is for the judge to conduct the entire voir dire, albeit with prior written input from the attorneys. Judge Ralph Ramirez of Waukesha County has been asking all the questions himself since at least 2006. While perhaps more accepted in criminal cases, he continued the practice in civil cases “to the consternation of some attorneys.”

When length is not limited

In contrast, Judge Michael Rosborough of Vernon County notes, “I have never found it necessary to limit the ability of lawyers to question jurors in voir dire.”

This allows for open-ended questions that aren’t specifically related to the facts of the case. For example, Attorney Rodney Cubbie of Milwaukee roused jurors to participation when he asked them how they got their news, starting the discussion by telling them, “I’m a newspaper man, myself.” The answers to broader questions such as this reveal viewpoints and potential biases.

Giving attorneys latitude also lets them give more down-to-earth examples of what bias and prejudice mean. A story about a bad customer service experience leading to negative feelings toward that company is easier for jurors to relate to than the words “bias” and “prejudice,” particularly since most people don’t easily own up to those labels.

Still, how bias and prejudice – as well as sensitive experiences – are explored is a matter left to the discretion of judges.

“In criminal cases involving sexual assault or an African American defendant,” Judge Roderick Cameron of Chippewa County said, “I do that part of the voir dire in chambers. I think I get more acknowledgement of prior sexual assault or abuse, or racial bias.”

Rosborough, on the other hand, doesn’t allow individual in-chambers voir dire.

“Instead, I fashion broad questions,” he said, “which will provide a ‘way out’ for jurors who are legitimately offended or influenced by the issues in the case.”

The Internet and social media

The abundance of information available on the internet has changed jury selection.

By way of example, Milwaukee County prosecutor Maureen Atwell arranges to have an online record check of venire panel members to determine if they lied by omission in failing to acknowledge a criminal record when asked. She then moves to strike them for cause for violating their voir dire oath to “truthfully answer all questions put to you.”

Attorneys can also conduct a Google or Bing search on prospective jurors to obtain more information about them. Rosborough tells of a juror in a civil case who was found via Google search to have obtained, pro se, a small claims judgment against Menards in a neighboring county, then to have successfully defended the judgment on appeal. This is helpful information that is unlikely to be elicited by case-specific questions.

Information about prospective jurors’ social media use can be enlightening. Do they, for example, frequently use Facebook? Judges or attorneys can ask if the venire members will “friend” them in order to check their Facebook timelines to get a sense for their viewpoints and proclivities, or outright biases.

Such internet searches can be conducted before voir dire begins if the names of the prospective jurors are known before they enter the courtroom. One way to accomplish this is with juror questionnaires that are used in some counties or in large, complicated cases.

Otherwise the voir dire needs to be interlaced with a break or lunch hour so the searches can be conducted before cause strikes are considered and peremptory challenges are exercised. Alternately, a staff member of an attorney can do the searches while the attorney is actively engaged in the voir dire.

Jury instruction committees weigh in

Widespread internet and social media usage prompted the Wisconsin Jury Instruction Committees to develop a revised pattern jury instruction for judges to give to prospective jurors. The instruction strongly cautions them not to use the internet for searches about the litigants or any issue in the case.

Likewise, they are instructed not to use social media during any part of the trial, including voir dire. Both of these cautions are aimed at preventing jurors from receiving nonevidential information, such as a defendant’s prior record, as well as frankly biased comments from others.

For example, when a man learned from a Facebook post that his niece was in the selection process for a criminal case, he wrote the comment, “Hang ’im!” The comment was explored in court as a potential source of bias for the niece.

In the end, the trend toward less time spent in voir dire should be balanced against the trend of reasonable, including online, exploration of juror bias.