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are coming to court with preconceived notions and personal agendas about the civil justice system, conscious or subconscious. We are hearing horror stories about peope who are trying hard to get on juries, but are not candid and fair in responding to questions. All attorneys, litigants, and, in particular, judges, have reason to protect the integrity of our system of justice which at its core offers a fair trial before an open-minded jury.
The single hardest job of an attorney during trial is voir dire, not just as a matter of form, but in finding those people who may not be impartial, and designing and delivering questions which will draw this out. The courtroom environment is intimidating and not conducive to this type of candor. Most people find it hard to admit that they cannot be fair and impartial. The attorneys'role in this process is obvious!to identify the people and ask the questions, sometimes even to the point of cross-examining a prospective juror. The judges' role should be the same.
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We need to sensitize the trial bench to the critical need for effective and penetrating voir dire, not only by the attorneys, but by judges. The courts need to promote an atmosphere of openness and candor during jury selection that will encourage members of the venire to admit bias or prejudice or partiality in a given case. Peremptory challenges should never have to be used by one or the other side to excuse panelists who should have been excused for cause.
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If a single person with a strong personality and closed mind is allowed to sit on a jury, this will often undermine the entire process of trial. If there is more than one such person on a jury, one side or the other may never have a chance no matter how meritorious their case. |
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The courts have a statutorily defined and active role in the identification of persons who may find it difficult to be impartial, and to excuse such people. In the federal courts, there is tremendous variation among judges as to whether attorneys may participate in voir dire, and, if so, to what extent. When the trial judge conducts voir dire, he or she has accepted the entire responsibility for finding a fair jury. 28 U.S.C. § 1866 covers the selection and summoning of jury panels in the federal courts. Under this statute, the trial court is given primary responsibility to excuse panelists on its own initiative without a motion from counsel. This is to be done "on the ground that such person may be unable to render impartial jury service or . . . upon determination by the court that his service as a juror would . . . adversely affect the integrity of jury deliberations." Of course, parties may raise such challenges themselves as well. In Kansas, pursuant to K.S.A. § 43-159, there is cause for the court to excuse from jury service " . . . persons whose information or interest in the case to be tried is such that there is a probability such persons would find it difficult to be impartial."
In Missouri, R.S.Mo. § 494.470, covers challenges for cause. The section establishes several categories of statutory ineligibility to serve, including: "2. Persons whose opinions or beliefs preclude them from following the law as declared by the court in its instructions . . . ." A prospective juror may also be challenged "for any causes authorized by the law." Missouri case law cites the general proposition that if, for any reason, a prospective juror is not in a position to enter the jury box with an open mind, free from bias and prejudice, he is not a competent juror. Where jurors give equivocal answers regarding bias, in the absence of further inquiry establishing impartiality, challenges for cause are supposed to be sustained. Unfortunately, this often does not occur, and there is little remedy in light of the "clear abuse-of-discretion" standard of appellate review.
Trial courts are trying hard to grapple with judicial economy and efficiency, faced with expanding dockets and shrinking budgets. Judges are sometimes under pressure to qualify prospective jurors because inadequate numbers of potential jurors are called to start out with. Where a case is controversial or it will be long, or it is likely to be difficult to find truly qualified jurors, the court and counsel should be sure there are enough reserves so that justice does not turn on expediency or arbitrary decision-making. In such cases, so much is invested in the litigation and trial process that it should not be undermined by shortage of venire members.
Trial judges simply need to recognize the increasing numbers of jurors with agendas, how that threatens our justice system, and get more involved in finding and eliminating such people to preserve the right to a fair trial.
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