BLOG BULLETS:

• We should think about filing motions for attorney-conducted voir dire in our cases, to give judges some written argument on why it’s appropriate.
• One reason to offer for attorney-conducted voir dire is the idea that attorney-conducted voir dire combined with the judge’s voir dire is the most effective way to get full disclosure from prospective jurors.
• Another reason to offer is that allowing attorney-conducted voir dire is a way to assure compliance with Batson and avoid any claim on appeal that the court failed to ask some required voir dire question.

NOW THE BLOG:

When I first came to the Los Angeles Federal Public Defender back in 1983, only one judge in the Central District of California allowed attorney-conducted voir dire, even as a supplement to initial judge-conducted voir dire. As I had contact with defenders from other districts over the years – and when I went to the Western District of Washington for three years – I found the practice varied between districts, with some districts allowing attorney-conducted voir dire, at least as a supplement, in almost all courts and cases. I was also exposed to literature on both the value to the defense and the greater efficacy of attorney-conducted voir dire.

All of this together led me to start thinking about pushing for attorney-conducted voir dire in our district, and I eventually developed a sample motion, which I’m attaching here. (The particular case in which the motion was filed here was an Alaska case, but I’ve filed it in the Central District as well.) It can definitely be improved upon, but I offer it as a starting point for getting the discussion going with the judges in the Central District and other districts where they don’t allow attorney-conducted voir dire. There has been some movement in the Central District, where there are now a few judges who have decided – largely on their own – to allow at least some attorney-conducted voir dire. That makes it seem worth pushing with other judges in a written motion supported by some legal argument and reasoning.

You can obviously read (and improve upon) the motion yourself, but I thought I’d summarize its points just briefly. First, it notes the importance of voir dire and explains how attorney-conducted voir dire is not necessarily more effective than, but can add to, good judge-conducted voir dire, so the two together produce more than either alone. The attorney-conducted voir dire adds something because (1) the attorneys will know the case better than the judge and will know to ask questions the judge may not know to ask and (2) some jurors may disclose more to attorneys than judges – and vice versa, depending on the juror – because of a perceived difference in the relative status of attorneys and judges. The motion also notes, in conjunction with this first point, that the judge can control any potential abuse of attorney-conducted voir dire by conducting some voir dire himself or herself and placing time and/or subject limits on the attorney-conducted voir dire. (Depending on how receptive you think your judge may be, you may not want to suggest time limits and instead note that the judge and/or opposing counsel can control abuse by objecting to particular questioning.)

The motion then suggests that allowing attorney-conducted voir dire to supplement judge-conducted voir dire can avoid reversible error. First, it can help assure compliance with Batson v. Kentucky, 476 U.S. 79 (1986), by (a) making it less necessary to rely on the generalizations and stereotypes which attorneys are left with when voir dire is overly limited, see J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143-44 (1994) (“If conducted properly, voir dire can inform litigants about potential jurors, making reliance upon stereotypical and pejorative notions about a particular gender or race [or occupation, or any other general characteristic] both unnecessary and unwise.”), and (b) providing the parties with the information they need “to articulate race-neutral explanations for their peremptory challenges,” id. at 144 n.17, when Batson requires them. Second, if the attorneys are allowed to ask voir dire questions themselves, there can be no complaint on appeal about the sorts of insufficiencies in voir dire that occasionally lead to reversal. (Several examples of such reversals are cited in the motion.) A defendant can hardly complain on appeal that the court failed to ask a particular required voir dire question when the defendant’s own attorney could have asked the question.

The bottom line is that there are some good, logical reasons we can give our judges about why they should allow at least some attorney-conducted voir dire. I think we sometimes too readily assume that the particular judge we’re in front of has an established practice that he or she won’t vary from. Filing a motion that articulates some of the advantages of supplemental attorney-conducted voir dire could change the judge’s mind. There’s been at least some movement in this area since I started as a public defender, and there’s potential for more.