High court pondering whether to issue guidelines for voir dire

The Minnesota Supreme Court is currently considering whether to adopt guidelines on what constitutes “best practices” for the voir dire process.

In a report submitted last December, the Minnesota Supreme Court Jury Task Force recommended the adoption of these measures as a way for the Supreme Court to guide trial courts and attorneys as to what are the proper practices for voir dire. The proposal is intended to streamline the process and limit the amount of time attorneys spend with prospective jurors.

The Supreme Court held a public hearing on the task force’s recommendations in June.

Ironically, the “best practices” recommended by the task force aren’t really changes at all in that they are consistent with the existing rules and caselaw. However, when it comes to voir dire, the law’s requirements seem to be more honored in the breach than in the observance, according to proponents of the task force’s recommendations. They argue that further Supreme Court guidance is necessary because voir dire currently takes too long, intrudes too much into jurors’ privacy and is often used to sandpaper the potential jurors rather than discover reasons why a juror should not serve.

But not everyone believes the current practices should change.

A number of criminal defense lawyers and civil practitioners say there isn’t any reason for the court to change a law that isn’t broken and, in fact, has worked pretty well. Any problems that exist in a particular trial can be addressed by the judge, they argue.

Minneapolis plaintiffs’ attorney Peter W. Riley recommended that the Supreme Court conduct a survey among litigants and their attorneys to determine if a problem actually exists. “If there is a problem, then let’s be thoughtful and forward-looking about what we should be doing today to fix it,” he said.

Minneapolis attorney Cecilie M. Loidholt, who tracked the task force report for the Minnesota Defense Lawyers Association, agreed with Riley that the survey should be conducted before trying to address a problem that may not even exist.

“It would be a good way to get feedback from the civil bar,” she stated.

Task force report

The task force was created by the Supreme Court in March 2000 following an evaluation of the jury system by the National Center for the State Courts and a Supreme Court Juror Compensation Workgroup. The latter issued a report in December 1999 recommending further study. The task force divided into two subcommittees, one to address juror treatment issues and one to address trial procedures. (The full text of the task force’s report was published in the Feb. 25, 2002, edition of Minnesota Lawyer.)

One of the more controversial recommendations by the task force — allowing jurors to question witnesses — has already been dealt with by the Supreme Court, in the criminal law context, anyway. Last month the Supreme Court held in State v. Costello that allowing jurors to question witnesses in criminal trials was unconstitutional.

Seventh Judicial District Judge William E. Walker, the chair of the task force, observed that the issue of questioning by jurors in civil cases is still on the table.

Interminable examinations?

The gist of the best practices proposal is that voir dire shouldn’t be used to give jurors information, but to extract it from jurors.

Recommendation No. 13 of the report states, “As a general principle, voir dire should be used to receive information from prospective jurors about their relevant opinions, beliefs, prior experiences, and relationships in order to permit the exercise of an informed challenge. Voir dire should not be used as a means to give information to prospective jurors about a party’s view of the facts or law applicable to the case. However, attorneys may provide basic information about the evidence or law when reasonably necessary to frame a question that has a proper purpose.”

Recommendation No. 14 of the report states, “Time limits during voir dire are authorized by law, but should be used carefully so as to be reasonable in light of the total circumstances.” (See the accompanying sidebar for the full text of task force recommendations 13 and 14 regarding the juror-selection process.)

Questions about how far voir dire should go are nothing new. In a 1933 case, State. v. Bauer, the Supreme Court observed: “The examination of jurors would be interminable if parties were allowed to take up the whole law of the case, item by item, and inquire as to the belief of the jurors and their willingness to apply it.”

That is exactly what is happening, according to Hennepin County District Court Judge Daniel Mabley, chair of the task force’s trial procedures subcommittee. At the public hearing, Mabley observed, “The law varies so far from the practice there are no standards.”

Bauer is still good law and prohibits many voir dire techniques that the District Court judges take for granted, the judge said, adding that the result is excessively long voir dire that takes up trial time, thereby limiting the availability of jurors and judges for other trials. All the improper purposes of voir dire that are listed in the report are common practice but are not supported by the law, he stated.

“Voir dire should be used to get information from jurors, not give it to them,” he said at the public hearing.

Because attorneys so often want to use the voir dire to establish rapport with the jurors, the task force report states clearly that questions that are primarily for that purpose are inappropriate, according to Mabley. This gives the judges a safe haven on which to base their rulings, he said.

“Judges don’t know what’s inappropriate so they defer to the lawyers,” Mabley observed. “The lawyers don’t object to improper voir dire because they want to do it too.”

At the same time, the task force members did not want to interfere with judicial discretion and for that reason made its recommendations in terms of best practices rather than a rule change, Mabley said. “It was never our intent to be inflexible,” he told the Supreme Court.

Mabley noted that inappropriate voir dire, besides being time-consuming, is often resented by the potential jurors, who recognize when the lawyers are trying to get them to surrender their neutrality.

Part of the show?

Prosecutors at the public hearing favored of the adoption of the best practices recommendations.

“We have made jurors mad, confused them and frustrated them,” said assistant Hennepin County attorney Paul Scoggin. “There is a growing inclination to make voir dire part of the show. There is a growing belief that good advocacy involves selling yourself and your case during voir dire.”

But Hennepin County Public Defender Leonardo Castro made clear in a written submission to the court that he opposes any time limits on voir dire.

“The comments suggest that judges do not use time limits for fear of being reversed,” he wrote. “Should we now then implement some kind of rule or practice that sanctions the improper use of time limits? It is the imposition of arbitrary limits that has resulted in due process violations and in turn has resulted in reversals. A clock cannot measure fairness and justice. Each question asked must be measured against the circumstances of a case and the composition of the life experiences of the jurors who will potentially sit to evaluate that case.”

Castro pointed out that the Supreme Court Advisory Committee on the Rules of Criminal Procedure approached the subject of improper use of voir dire differently.

The rules committee found that, “Because of the protean nature of voir dire, the subject of improper voir dire would be better addressed through continuing legal education than by amending the Rules. Therefore, the Committee recommends no change to the Rules of Criminal Procedure, and supports the Jury Task Force’s desire to provide instruction in the proper purpose of voir dire through judicial and attorney education.”

The rules committee argued that the task force’s recommendations weighed too heavily in favor of efficiency.

“The trial judge is in the best position to determine the appropriateness of counsels’ questions, the manner of inquiry, and the proper amount of time to take,” the rules committee observed in its report. “Therefore, nearly all of the concerns addressed in the jury selection recommendations should be left to judicial discretion.”

A civil action?

Riley said at the public hearing that the Minnesota Trial Lawyers Association disagreed with two of the task force’s recommendations — putting time limits on voir dire and prohibiting voir dire that is used to build rapport or educate jurors.

“Thorough, probing voir dire is important because jurors are subject to misinformation about the law,” he said. Rapport building is important because the lawyer has to have the juror’s trust to obtain candid opinions from the juror and determine any unconscious bias the juror may have, he argued.

Riley told Supreme Court justices that when a line needs to be drawn to prevent improper voir dire, the trial court judge can draw it.

“That’s my point,” he said. “There’s not a problem [with voir dire].”

In an interview with Minnesota Lawyer, Riley pointed out that when the Minnesota State Bar Association conducted focus groups about jury selection in 1995, jurors did not indicate that they were unhappy with the process. He also noted that civil litigants were not represented on the task force, although members of the plaintiffs’ and the defense bar did attend and speak.

Loidholt said that lawyers can’t talk to the jurors about their possible biases without giving them the facts of the case. She said lawyers need to be able to find out if members of the venire have had experiences similar to the facts that will be developed at trial.

“I don’t think civil lawyers do things to curry favors with jurors,” Loidholt said. “My understanding is that was the concern. A three, four or five day voir dire is unheard of in civil trials.”

Loidholt recalled that her longest voir dire was two hours, and that in that instance, the presiding Hennepin County judge encouraged it.