“Voir dire” means literally “to speak the truth”, and is derived from Old French. The term, which is familiar to many people from courtroom dramas and John Grisham novels, most often describes an important part of jury selection in criminal trials, although in practice it can also refer to a pre-trial examination of almost anyone who will be providing evidence. Expert witnesses can be quizzed about their qualifications and backgrounds, for instance, and ordinary witnesses can have their fitness to testify assessed by attorneys or by a judge.
In its most familiar form, however, voir dire is a process by which prospective jury members are questioned, under oath, by the court. Typically, the potential juror is called to the jury box, either individually or as part of a group, and asked a series of questions by the attorneys, the judge, and/or the parties. Although the questions are asked orally, a written questionnaire is often provided too.
The juror will be examined for any potential bias, or connection to the case. They may be asked about their qualifications, occupation, political or cultural affiliations, prejudices, and prior experiences with the law, as well as whether they have any possible association with anyone directly involved in the trial. Additionally, attorneys may sometimes use voir dire as a way of introducing evidence which jurors may find offensive or shocking.
The process is regulated by the trial judge, who provides guidelines and rulings about the materiality of any question, and who sets the time limit allowed for questioning. Inquiries which go beyond an assessment of competency, or which appear to be prejudicial, will not be permitted.
If a potential juror is shown to have bias or a connection to the case, any party may move to have that person dismissed for ‘cause’. The judge will either accept the challenge – if sufficient reason is given – or allow the juror to remain empanelled. There is no limit to the number of challenges for cause on either side of the case.
There is, however, a limit on what is known as peremptory challenges. An unwritten, but established, part of voir dire is for attorneys to assess the personality of each candidate in order to determine likely views or responses to evidence and as part of their efforts to shape the composition of a jury, lawyers will sometimes move to dismiss a potential juror without giving a reason. These peremptory challenges are granted by statute or case law, rather than as a constitutional right, and in federal courts are limited to three challenges on either side. Since 1986, it has been illegal to challenge jurors on the basis of race, and since 1994, on the basis of gender.
These are not the only changes to voir dire in recent years. The use of social media is now playing its part in jury selection, and increasingly, jurors may be asked about their activity on such sites, or about their online access to information about a case. Savvy lawyers will be accessing Twitter and Facebook accounts to discover more about the lives and opinions of those who are called to serve. In the ongoing George Zimmerman murder trial, for instance, one potential juror was dismissed on the basis of a Facebook page handed to the judge. In years to come, it seems likely that this practice will become ‘de rigueur’ in voir dire.
The entire process of jury selection can take days, or even weeks, to complete. Although voir dire is supposed to assist in the selection of an impartial jury, there will be times during the trial when lawyers from both sides of the case will look across at the twelve who have been chosen and wonder, “Did I get it right?”