Principle v. Practice: A Judge's Challenge To Improve Voir Dire

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What do judges talk about when they talk about voir dire? Judge Gregory Mize is gently challenging his colleagues to make voir dire better, by comparing a new set of inspiring goals to new data documenting a less inspiring reality.

If there were a blog devoted entirely to Judge Mize's work to improve the jury system, that blog would have plenty to talk about. Judge Mize guest posted here about his trip to Russia for the first-ever "juror's summit" there. In trials in his own courtroom, he asked jurors who had been silent through voir dire to speak up –resulting in eye-opening papers I wrote about here. ("I'm the defendant's fiancee," one juror said.)

Judge Mize is retired from the Superior Court of the District of Columbia. He is currently a judicial fellow at the National Center for State Courts, where he is guiding NCSC’s National Jury Program. Now, with the NCSC's respected Center for Jury Studies director Paula Hannaford-Agor, he has written another paper. This time they're talking to judges, in the ABA's Judges' Journal , and the article is "Building A Better Voir Dire." (You can't get into Judges' Journal unless you're in the Judicial Division of the ABA, but Judge Mize and the Journal have both kindly agreed to let me post a copy here, all rights reserved.)

Telling the truth

How do you inspire reluctant judges to improve voir dire? With quiet candor. First, let's be clear about the problem: judges and lawyers have different interests.

The parties and their lawyers want to learn as much as possible about the attitudes and life experiences of each venire member to know who they want to keep out of the jury box. But at times, lawyers obtain so little information that jury selection becomes a hunch game.

The trial judge, with dozens—or hundreds—of like-kind cases on his or her docket, wants to administer justice in a timely and efficient manner so that other cases can be given prompt attention. Speed can be a top goal for some judges. Others, however, share the lawyers' thirst for juror information in order to rule intelligently on motions to strike for cause. . . .

These competing professional interests are seldom resolved to anyone's satisfaction.

But there are, these authors say, two resources that let judges compare ideals to reality, and use the gap between them to improve. Both tools are fairly new, and Judge Mize and the NCSC had a hand in both.

Principles . . .

The first is the ABA's American Jury Project, "an intense effort to inspire judges and lawyers to improve jury trial practices." Judge Mize was part of it, together with Ms. Hannaford-Agor's NCSC colleague Tom Munsterman. "After twelve months of intensive work," say Judge Mize and Ms. Hannaford-Agor, "the group, composed of trial practitioners, judges, and jury experts from across the country, produced the ABA Principles for Juries and JuryTrials." The central tenet on the quality of voir dire is Principle 11: "Courts should ensure that the process used to empanel jurors effectively serves the goal of assembling a fair and impartial jury."

What does that mean? The Principles suggest it means a lot of things. Like jury questionnaires in regular use. On-the-record voir dire. "Appropriate demographic data." Simply letting lawyers ask questions, "recognizing the special knowledge that each attorney possesses regarding case-presentation strategy and the characteristics of their witnesses." (Judge Mize and Ms. Hannaford-Agor note that "empirical research has repeatedly documented that prospective jurors tend to respond more candidly to questions posed by attorneys than those posed by judges." In many courts, including federal court here in Wisconsin, it's almost never done.)

Most important, perhaps, this goal means that judges should stop working so hard to keep possibly biased jurors on the panel: "[Principle 11] supports a low-threshold standard for court rulings on for-cause motions by stating that '[i]n ruling on a challenge for cause,the court should evaluate the juror's demeanor and substantive responses to questions. If the court determines that there is a reasonable doubt that the juror can be fair and impartial,then the court should excuse him or her from the trial.'"

. . . in practice?

The second tool is the NCSC's massive "State-of-the-States Survey," which Judge Mize and Ms. Hannaford-Agor helped author and which I've written about here. This national study "provided the first comprehensive snapshots of jury procedures, operations, and practices in state and local courts," they now write, and "like box scores in the sports pages, presents several undeniables." Again, they're gentle but blunt:

The information-promoting techniques recommended in Principle 11—use of questionnaires and individualized questioning of prospective jurors—are hardly ever employed.

This article isn't a lecture, it's a set of questions. "Might the ABA's adoption of the principles provide an opportunity for judges and lawyers to begin discussing what a more mutually desirable voir dire could look like? Is there likely agreement among bench and bar in one's home jurisdiction that the 'system' would be better served if we worked together to attain greater juror candor in cases?" Many more questions follow, and the authors conclude: "In this matter, you are the jury, and it may be time to render some verdicts."