Attorney conducted voir dire
Anne Reed at Deliberations asks "What do you think judges should do to improve voir dire where you practice?"
In South Carolina, we could begin by having voir dire. Voir dire in our courts, with the exception of capital cases, usually consists of the judge asking 3 or 4 questions of the jury pool, if that. There is no attorney-conducted voir dire, but attorneys can submit questions to the court that the judge may or may not ask, in his discretion.
Typical questions that I usually request and that are approved include whether any potential juror or their immediate family has been a victim of a violent crime, or has been involved in an accident with a drunk driver, depending on the type case. The court will usually ask if anyone is a member of or contributes to law enforcement fraternal organizations. If it is a high profile case, the judge will ask if any potential juror has seen or heard about the case on the news. The only follow up question is whether they can still be fair and impartial, and the answer to this 9 out of 10 times will be, "Of course." Besides these few questions, jury selection is based on occupation, spouses occupation, and responses to the questions asked by the judge during the qualification of the jurors.
One of the arguments against attorney conducted voir dire is that it would take up too much of the court's time. I have to disagree with this. The court can and does set time limits on voir dire, which can range from 15 minutes to an hour or more, depending on the complexity of the case or the request of the attorneys. An additional hour taken in voir dire would hardly be excessive compared to the benefits to both parties in ensuring a fair trial.
If we were to implement attorney conducted voir dire, one immediate problem would be that most attorneys have no idea how to conduct voir dire, since they have never been allowed to do it. After a rocky start, however, lawyers would learn and improve with practice, and judges would certainly set ground rules and monitor the process. With some practice and a few CLE's under our belts, this would not be an issue for very long.
Choosing a jury in a criminal case, for defense and prosecution alike, is very nearly a random process in South Carolina. Defendants, and the State, have a right to an impartial jury to hear their cases, and allowing attorney conducted voir dire would go a long way towards accomplishing this.
I am interested in hearing whether other defense attorneys or prosecutors have strong feelings on this one way or the other. I know that it has been debated in the past, and I think that we should keep the conversation alive. I believe that it has been proposed in the legislature and failed, but does this have to come from the legislature? Could it be instituted by court rules instead? What would it take to get attorney conducted voir dire in our state?
