Objections during voir dire examination of prospective jurors: the legal community has adopted a common set of evidentiary objections used when witnesses testify during trials or hearings. Most law students take a class on evidence. Early in their practice, young litigators review materials that outline the rules of evidence and summarize trial objections.
Once witnesses begin testifying, the judge and the lawyers understand the bases of and shorthand terminology for objections. When a lawyer calls out "objection--hearsay," "foundation," or "beyond the scope," the judge either sustains or overrules the objection based on a set of commonly understood principles.
The questioning of prospective jurors is completely different. Almost nobody studies juror voir dire examination in law school. Few sources outline what questions are permissible.
The legal community does not share a common set of shorthand expressions for objections during jury selection. The permissible scope of voir dire examination of prospective jurors has become muddled because of the lack of commonly understood objections. When parties inquire why an objection has been sustained, judges typically make a vague declaration that the question is "not proper."
Despite the apparent murkiness, our legal system has developed bases for objections during the questioning of prospective jurors. This article will outline potential objections during voir dire examination of prospective jurors and discuss the implications for trial practice.
Objections to voir dire of prospective jurors
Illinois courts have identified at least six potential objections to questions presented to prospective jurors during the jury selection process.
1. Indoctrination or pre-educating as to a party's theory of the case. The purpose of voir dire examination is not for the parties to argue their case. Therefore, questions that indoctrinate the jury as to specific positions of the parties are objectionable. The Illinois Appellate Court has explained that "voir dire should not be converted into a 'vehicle for pre-educating and indoctrinating prospective jurors as to a particular theory or defense....'" (1)
Illinois courts have applied this principle to prohibit questions that attempt to pre-view one party's theory of the case. For example, prosecutors may not ask prospective jurors whether they believe that people have a natural impulse to confess to their wrongdoings. (2) Similarly, prosecutors may not ask prospective jurors whether they believe that a person could plan and carry out a murder of another family member as a solution to problems within the family relationship. (3)
For the same reason, defense attorneys generally may not ask questions that attempt to pre-educate the jury regarding the defendant's theory of the case. For example, Illinois courts have refused to allow voir dire questions regarding self-defense. As the Illinois Appellate Court has explained, "allowing [a] defendant to question the prospective jurors regarding any predisposition to a self-defense claim goes to an ultimate question of fact and would serve no purpose other than to improperly attempt to pre-educate and indoctrinate the jurors as to defendant's theory of the case." (4)
The Illinois Appellate Court has upheld the refusal to ask the following questions:
Do you feel that a mother, to protect herself and her children from being hurt, might involve herself in a crime, and even be willing to go to jail to protect herself and her children?' Will you be able to follow the law that a person may use deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself? (6)
Additionally, a criminal defendant does not have a right to ask questions about prospective jurors' perceptions of the accuracy of eyewitness identifications. (7) Illinois courts have upheld refusals to ask the following questions:
Have you ever greeted a stranger as an acquaintance because you mistook the stranger? (8) Has a stranger ever greeted you because of a mistaken identity? Please explain. (9) Do you believe that a person can be mistaken about the identification of another? (10)
Illinois courts permit voir dire questions that touch on a party's theory of the case when dealing with potentially controversial issues, an exception that is further discussed below. (11) But in most cases, questions outlining or educating prospective jurors about one side's position are objectionable.
2. Pre-trying with hypotheticals. Parties may not ask prospective jurors to pre-judge the case. Therefore, attorneys cannot present venire members with hypothetical fact patterns and ask them how they would vote. The Illinois Appellate Court has explained that voir dire should not be used "to obtain a pledge as to how [prospective jurors] would decide under a given set of facts or determine which party they would favor in litigation." (12)
For example, the appellate court found error where a prosecutor repeatedly informed jurors that they would hear two versions of events and then asked whether this would automatically create reasonable doubt in their minds. (13) Hypotheticals that outline anticipated evidence and ask potential jurors for a decision are objectionable.
The prohibition against pre-trying the case with hypothetical fact patterns does not bar all questions about types of evidence or hypothetical questions. The appellate court has stated that the parties may use hypotheticals "'to ascertain whether the jurors could intellectually comprehend' the respective theories of the case. Such an inquiry is acceptable, as long as it does not rise to the level of indoctrination or preeducation." (14)
In some circumstances, questions may ascertain whether a prospective juror could consider a particular decision or verdict as one option. For example, a party may ask whether any prospective jurors have "an objection to rewarding money damages under any circumstances," may describe the concept of punitive damages, and then may ask if any prospective jurors oppose punitive damages to the extent that they could not award them under any circumstances. (15) Such questions do not seek a pledge how a prospective juror would decide, but the opposite by ensuring that prospective jurors have not pre-judged an issue and can consider all options.
3. Law and instructions. Illinois Supreme Court Rules 234 and 431 each state that questions to prospective jurors "shall not directly or indirectly concern matters of law or instructions." However, higher courts in Illinois routinely allow questions about law and instructions. The Illinois Appellate Court has stated that "inquiry may be made as to whether a juror has a disagreement with a particular rule of law which will be applied in that case." (16)
Two legal principles seem to govern the exceptions to the general rule prohibiting such inquiries. First, the parties cannot expect prospective jurors to understand the law before they receive instructions. Attorneys may not "test the jurors understanding of the law ... before they [are] instructed." (17)
Second, Illinois courts allow questions about legal principles that might be controversial to some jurors. The Illinois Supreme Court has explained it as follows:
In People v Wright, prospective jurors were asked whether they could impose the death penalty in an appropriate capital case. A majority of this court found such voir dire unexceptionable under Rule 234.... Similarly, attorneys have been allowed in dramshop actions to ask prospective jurors whether they disagreed with the dramshop statute. The thread which runs through those cases is that the jury was going to be asked to apply an extraordinarily controversial legal requirement against which many members of the community may have been prejudiced. Inquiry into the feeling or viewpoint of the venire regarding such controversial legal propositions is consistent with a bona fide examination conducted so that parties can intelligently exercise their prerogatives to challenge. (18)
Thus, questions about the law or instructions have been found acceptable when a potentially controversial legal rule is briefly stated and prospective jurors then are asked their viewpoints about the rule. (19)
Illinois courts have allowed questions eliciting prospective jurors' viewpoints on a criminal defendant's right to remain silent, (20) the insanity defense, (21) punitive damages, (22) legal accountability, (23) and the death penalty. (24) For example, parties may aSK prospective jurors:
Do you have any feeling or viewpoint concerning the defense of insanity in a criminal case? If so, what? (25)
As a legal concept a person who is accused of a crime may not be responsible if, because of a mental illness or disease, he is unable to conform his conduct to the requirements of the law, that is, he is unable, because of his disease, to do right instead of wrong. Do all four of you agree with that concept? (26)
Can you explain to us here in court what your feelings are about the imposition of the death penalty? (27)
But questions regarding uncontroversial rules of law, such as the need for careful evaluation of eyewitness testimony, are not permissible. (28)
4. Privilege against self-incrimination. The Fifth Amendment's privilege against self-incrimination applies to prospective jurors. Therefore, venire members should not be asked whether they personally have committed crimes. (29)
5. Relevance. An attorney may briefly explain a point before asking a question of prospective jurors, but counsel should not inject irrelevant issues or personal opinion into the case. (30) The scope of "relevant" voir dire examination can be quite broad. Parties may ask about venire members' personal life experiences including membership in organizations, hobbies, reading interests, family, education, and professional experiences. (31)
Voir dire examination can extend well beyond the specific topic of the case. The Illinois Supreme Court has found questions about childhood abuse to be relevant in a case involving government officials who allegedly defrauded a municipality by receiving kickbacks from suppliers. (32)
In that case, a juror informed the judge that she was nervous because of childhood abuse when she was locked in an attic. She claimed to fear confinement so that the jury room made her nervous. The Illinois Supreme Court noted, "[t]o accept a juror who acknowledged a longstanding fear of closed places and to deny counsel the right to interrogate this juror ... was, under the circumstances prejudicial error." (33) Thus, many topics could reflect upon a juror's viewpoints or somehow impact a juror's service and may be relevant during voir dire examination.
6. Asked and answered. A party normally may not continue asking the same question once a prospective juror has already answered. Circumstances might exist where a prospective juror's additional commentary casts doubt on the original response such that a party may revisit the matter, but counsel usually should not repeat questions.
However, general statements that a prospective juror could be impartial do not exhaust proper inquiry into a topic. The parties are entitled to explore whether any prejudices exist, regardless of a cursory statement that the venire member would be fair. The Illinois Appellate Court has explained, "[w]hile the statement of a juror as to his or her ability to be fair and impartial is proper for the court to consider as evidence of the juror's state of mind.... it does not alone determine a juror's eligibility." (34) The Illinois Appellate Court has further noted "[i]t is unrealistic to expect that any but the most sensitive and thoughtful jurors (frequently those least likely to be biased) will have the personal insight, candor and openness to raise their hands and declare themselves biased." (35) General proclamations about being fair do not preclude further questions to reveal opinions that could influence the decision-making of prospective jurors.
Permitted voir dire questions
Courts have approved the following types of questions during jury selection.
Non-leading or open-ended questions.
The Illinois Supreme Court has expressly approved open-ended questions requiring a "narrative answer" on the part of prospective jurors. (36) Several trial advocacy texts, including one cited by the Illinois Appellate Court, recommend nonleading questions during voir dire. (37)
Professor Mauer has noted, "Open-ended questions let jurors answer using their natural vocabulary and manner of expression. How a juror answers, rather than what he says, is often a more reliable indicator of that juror's attitudes on critical issues." (38) For this reason, parties are not limited to asking questions merely requiring a "yes or no" answer about whether the juror could be fair in light of a particular circumstance.
Questions regarding types of evidence. A party may not pre-try the case with hypothetical questions outlining the expected evidence, but questions about specific types of evidence are not automatically prohibited. Parties are allowed to ask whether potential facts may affect a venire member's ability to serve as a fair juror as long as such questioning does not cross the line into pre-trying the case with hypotheticals.
For example, Illinois Courts have allowed voir dire questioning about anticipated evidence in areas such as circumstantial evidence, (39) alcohol and drugs, (40) credibility of incarcerated witnesses, (41) credibility of police officers, (42) criminal street gangs, (43) handguns, (44) and the location where pedestrians cross the street. (45) Inquiries about potential evidence become objectionable only when the questions call on prospective jurors to pre-judge the case or indoctrinate the jury into a party's theory of the case.
Implications for practice
If there is no basis to object to a question, does that mean that a party may ask that question? The answer would seem to be self-evident, but Illinois case law has become confused because of a change in the Illinois Supreme Court Rules.
On May 1, 1997, the supreme court rules governing voir dire examination (234 in civil cases and 431 in criminal cases) were amended in the following ways (additions are underlined, deletions have a line through them):
The court shall conduct voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching their qualification to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate- ,-or and may shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature of the charges.
Among the changes, the rule replaced "may permit ... direct inquiry" with "shall permit ... direct inquiry." The rule contains the limitation "as the court deems proper," which undoubtedly gives the trial court the right to sustain objections and limit improper voir dire questioning, but this language is immediately followed by the phrase "for a reasonable period of time." Thus, some period for direct inquiry is mandated.
Most observers interpret this change to mean that attorneys have the right to ask questions directly of the venire members. (46) The Illinois Appellate Court has ruled that "the parties [have] an absolute right to ask questions directly of prospective jurors limited only by reasonable restrictions of scope and time." (47) Since the adoption of the rule, several appellate court decisions have referred to attorney-conducted voir dire as an accepted procedure. (48)
Before this change, the trial court had wide discretion whether to present questions during jury selection. For this reason, a large body of case law was created before attorneys had the right to question prospective jurors. A question might be permissible, but the trial court was not necessarily required to make the inquiry.
A different situation exists once attorney-conducted voir dire examination is mandated. Past appellate court and supreme court decisions did not necessarily address whether a question was permissible, but whether the question was absolutely required. In explaining seemingly contradictory rulings, the Illinois Appellate Court has noted,
In [past cases], the supreme court held that the respective trial courts did not abuse their discretion in barring questions about evidence that would be offered at trial. However, in this case, the trial court permitted questions about such evidence. In light of the deferential abuse-of-discretion standard that applies to a review of voir dire, we conclude that the affirmance of the exclusion of the questions in [past cases] does not mandate a reversal of the allowance of similar questions here. (49)
Thus, a higher court decision affirming a trial court's discretion to bar a question is not tantamount to a decision that the question is improper or objectionable. Questions to prospective jurors are proper unless they indoctrinate the jurors into a theory of the case, pre-try the case with hypotheticals, concern law or instructions, violate the privilege against self-incrimination, are irrelevant, or have been asked and answered.
A legal system that values the rule of law and principled decision-making should require that parties identify the bases for their arguments and that judges make decisions pursuant to those bases, or at least that judges make decisions pursuant to some identified set of rules after giving parties an opportunity to respond.
If a party wishes to present relevant questions to prospective jurors, whether to develop arguments about challenges for cause or to exercise peremptory challenges in an intelligent manner, the trial court should permit those questions unless they are subject to a legal objection.
(1.) People v Mapp, 283 Ill App 3d 979, 986, 670 NE2d 852, 857 (1st D 1996), quoting People v Kendricks, 121 111 App 3d 442, 449, 459 NE2d 1137, 1142 (1st D 1984). See also Rub v Consolidated Rail Corp, 331111 App 3d 692, 696, 771 NE2d 1015, 1019 (1st D 2002) (voir dire should not be used "to indoctrinate or pre-educate jurors."); People v James, 304 Ill App 3d 52, 57, 710 NE2d 484,489 (2d D 1999).
(2.) People v Bell, 152 Ill App 3d 1007, 1017-18, 505 NE2d 365, 372-73 (3d D 1987).
(3.) Id. See also People v Boston, 383 Ill App 3d 352, 355, 893 NE2d 677, 681 (4th D 2008) (questions "And is there anyone that believes a person consents to a sexual act if they do [no]t scream or fight or kick or yell or scratch or hit? Anyone require a victim to do any of those things while she [i]s being assaulted?" constitute improper pre-education of state's case.)
(4.) People v Skipper, 177 Ill App 3d 684, 688, 533 NE2d 44, 46 (1st D 1988). See also People v Karim, 367 Ill App 3d 67, 92-93, 853 NE2d 816, 837 (1st D 2006).
(5.) People v Byer, 75 Ill App 3d 658, 670, 394 NE2d 632, 641 (1st D 1979).
(6.) People v Muhammad, 132 Ill App 3d 901, 904, 478 NE2d 457, 460 (1st D 1985).
(7.) People v Pineda, 349 Ill App 3d 815, 819, 812 NE2d 627,632 (2d D 2004); People v Bowel, 111 Ill 2d 58, 64, 488 NE2d 995, 998-99 (1986).
(8.) Id at 64, 488 NE2d at 998.
(10.) People v Witted, 79 Ill App 3d 156, 164, 398 NE2d 68, 76 (1st D 1979).
(11.) See notes 18-27. The Illinois Appellate Court has explained:
Generally, questions about specific defenses are excluded from voir dire, i.e., questions about beliefs concerning mistaken identity; self-defense, or the defense of compulsion. An exception exists for matters of intense controversy when "simply asking jurors whether they could faithfully apply the law as instructed [is] not enough to reveal juror bias and prejudice toward that defense." (Internal cites omitted).
Boston at 354, 893 NE2d at 680, quoting Mapp at 987, 670 NE2d at 858 (brackets in original).
(12.) Rub at 696, 771 NE2d at 1019. See also Gowler v Ferrell-Ross Co, 206 Ill App 3d 194, 207, 563 NE2d 773, 781 (1st D 1990) (improper "to obtain a pledge [from prospective jurors] as to how they would decide under a given state of facts."); Bell at 1017, 505 NE2d at 372.
(13.) Mapp at 988, 670 NE2d at 858; People v M. D., 231 Ill App 3d 176, 197, 595 NE2d 702, 715 (2d D 1992).
(14.) People v Taylor, 287 Ill App 3d 254, 261, 678 NE2d 358, 363 (2d D 1997). See also Gowler at 208, 563 NE2d at 781.
(15.) Gomez v The Finishing Co, Inc, 369 Ill App 3d 711, 714, 861 NE2d 189, 193 (1st D 2006).
(16.) Limer v Casassa, 273 Ill App 3d 300, 302, 652 NE2d 854, 857 (4th D 1995).
(17.) Mapp at 989, 670 NE2d at 859.
(18.) People v Stack, 112 Ill 2d 301, 312, 493 NE2d 339, 344 (1986) (citations omitted). See also Mapp at 987, 670 NE2d at 858; People v Lanter, 230 Ill App 3d 72, 76, 595 NE2d 210, 213 (4th D 1992).
(19.) See, for example, Mapp at 989, 670 NE2d at 859 ("Given these decisions, we conclude, despite the proscription of Rule 234, that potential jurors may be given a brief and fair summary of accountability principles and then be asked if they could properly apply those principles to the evidence."); People v Faulkner, 186 Ill App 3d 1013, 1022, 542 NE2d 1190, 1195 (5th D 1989) (Approving the question "Do you have any quarrel with the concept the State is not required to produce a body in this case?").
(20.) People v Zebr, 103 Ill 2d 472, 447, 469 NE2d 1062, 1064 (1984).
(21.) Stack at 311-12, 493 NE2d at 343; People v Moore, 6 111 App 3d 568, 286 NE2d 6 (3d D 1972).
(22.) Gomez at 714, 861 NE2d at 193.
(23.) People v Davis, 95 Ill 2d 1, 18, 447 NE2d 353, 361 (1983). Compare People v Washington, 104 11 App 3d 386, 391, 432 NE2d 1020, 1024 (1st D 1982) ("There is no reasonable likelihood that potential jurors will have fixed opinions or biases concerning ... the law of accountability.").
(24.) Morgan v Illinois, 504 US 719, 729 (1992); Wainwright v Witt, 469 US 412, 424 (1985); Witherspoon v Illinois, 391 US 510 (1968); People v Cloutier, 156 Ill 2d 483, 498, 622 NE2d 774, 782 (1993).
(25.) Stack at 310, 493 NE2d at 343.
(26.) People v Scott, 148 Ill 2d 479, 514, 594 NE2d 217, 230 (1992).
(27.) People v Buss, 187 Ill 2d 144, 195, 718 NE2d 1, 30 (1999). The Illinois Supreme Court also approved this question: "can you tell us what your feelings, what personal feelings you have, if any, regarding the imposition of the death penalty?" Id at 196, 718 NE2d at 31.
(28.) Bowel at 64, 488 NE2d at 998 (no basis to believe that people harbor bias or prejudice against the defense of mistaken identity).
(29.) James at 58-59, 710 NE2d at 489-90.
(30.) See Mapp at 989, 670 NE2d at 859.
(31.) Steven Luber, Modern Trial Advocacy: Analysis & Practice (NITA 3d ed 1993), pp 446-47.
(32.) People v Kurth, 34 111 2d 387, 390-91, 216 NE2d 154, 156 (1966).
(33.) Id at 391, 216 NE2d at 156.
(34.) People v Thomas, 89 11 App 3d 592, 600, 411 NE2d 1076, 1083 (1st D 1980) (citations omitted).
(35.) Village of Plainfield v Nowicki, 367 Ill App 3d 522, 524, 854 NE2d 791, 794 (3d D 2006), quoting State v Ball, 685 P2d 1055, 1058 (Utah 1984).
(36.) Buss at 195, 718 NE2d at 30 ("each prospective juror not excused during preliminary questioning was required to provide a narrative answer to the court's question, 'Can you explain to us here in court what your feelings are about the imposition of the death penalty?' Their responses generally gave a clear picture of their attitudes toward this law.").
(37.) See, for example, Paul Bergman, Trial Advocacy in a Nutshell (2d ed 1989), pp 319-20; Steven Luber, Modern Trial Advocacy at 447-48 (cited in note 32); Thomas A. Mauer, Fundamentals of Trial Techniques (2d ed 1988), p 38.
(38.) Thomas A. Mauer, Fundamentals of Trial Techniques at 38 (cited in note 38). The Illinois Appellate Court relied upon Mauer in York v El-Ganzouri, 353 Ill App 3d 1, 12-13 817 NE2d 1179, 1190 (1st D 2004) (citing Mauer regarding voir dire) and People v Lee, 342 Ill App 3d 37, 51, 795 NE2d 751, 762 (1st D 2003).
(39.) People v Freeman, 60 Ill App 3d 794, 799-800, 377 NE2d 107,111 (4th D 1978) (approving questions: "[w]ould you find it difficult in your own mind to find a verdict of guilty if a good portion of the evidence which you heard is what is called circumstantial evidence?" and "[w]ould either of you find it impossible in your own minds to find a verdict of guilty if there were no eyewitness testimony presented to you from the witness chair?").
(40.) US v McIntyre, 917 P2d 800, 806 (4th Cir 1990), overruled on other grounds in United States v Lancaster, 96 F3d 734 (4th Cir 1996) ("Have any members of this panel ever either personally or had a member of their immediate family who has been the victim of drug abuse?"). Village of Plainfield at 523, 854 NE2d at 793 (proper to question prospective jurors "whether they drink alcohol socially and, if not, whether they have any religious or moral opinions regarding drinking alcohol."); Lanter at 73, 595 NE2d at 214 (approving question "Do any of you have any feelings concerning the use of alcohol or drugs which could affect your ability to be a juror in this case, if there were testimony about alcohol or drugs?").
(41.) People v Smith, 241 Ill App 3d 365, 383, 610 NE2d 91, 102 (5th D 1992).
(42.) People v Taylor, 235 Ill App 3d 763, 764, 601 NE2d 1305, 1306 (3d D 1992) (permissible to ask if prospective jurors "would be more likely to believe the testimony of a police officer simply because he was a police officer.").
(43.) People v Strain, 306 Ill App 3d 328, 337, 714 NE2d 74, 81 (1st D 1999), aff'd, 194 Ill 2d 467, 742 NE2d 315 (2000).
(44.) People v Sanders, 143 Ill App 3d 402, 404, 493 NE2d 1, 2 (1st D 1986) (questioning jurors "if there is any one person who feels that the mere fact that a gun is involved would so prejudice them that they could not render a fair trial.").
(45.) Grossman v Gebarowski, 315 Ill App 3d 213, 222, 732 Ne2d 1100, 1107 (1st D 2000) (allowing questions "sufficient enough to identify jurors entertaining a bias against a pedestrian who crosses a street at a place other than an intersection or marked crosswalk.").
(46.) See, for example, Michael P Toomin, Jury Selection in Criminal Cases: Illinois Supreme Court Rule 431--A Journey Back to the Future and What It Portends, 48 DePaul L Rev 83, 83 (1998) ("Illinois Supreme Court Rule 431 ('Rule 431') has significantly broadened the attorney's role in the jury selection process by restoring to counsel the right to personally question prospective jurors.").
(47.) People v Garstecki, 382 Ill App 3d 802, 809, 890 NE2d 557, 563 (3d D 2008). See also Grossman at 221, 732 NE2d at 1106 ("under the rule as amended, the trial court must now allow counsel a reasonable opportunity to supplement the trial court's own direct inquiry by counsels' own direct oral inquiry."). But see People v Allen, 313 Ill App 3d 842, 847, 730 NE2d 1216, 1221 (2d D 2000) ("Rule 431 does not create an absolute right of attorneys in every case to ask questions directly of prospective jurors. It does, however, require that a trial court exercise its discretion in favor of allowing an attorney's direct questioning of prospective jurors in accordance with the factors listed in Rule 431.")
(48.) See, for example, Thornbill v Midwest Physician Center, 337 Ill App 3d 1034, 1045, 787 NE2d 247,257 (1st D 2003); Rub at 705, 771 NE2d at 1026.
(49.) Pineda at 820, 812 NE2d at 632-33 (emphasis in original).
Marc B. Stahl is an assistant public defender with the Office o f the Cook County Public Defender. He received his JD from the University o f Chicago Law School.
|Printer friendly Cite/link Email Feedback|
|Author:||Stahl, Marc B.|
|Publication:||Illinois Bar Journal|
|Date:||Jan 1, 2009|
|Previous Article:||The business attorney's guide to (c)opyright law: as copyright interests grow increasingly valuable, businesses that fail to protect their creative...|
|Next Article:||Will I lose my stepchildren?|