Voir dire

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Voir dire (/ˈvwɑːr dɪər/) is a legal phrase for a variety of procedures connected with jury trials. It originally referred to an oath taken by jurors to tell the truth (Latin: verum dicere),[citation needed] i.e., to say what is true, what is objectively accurate or subjectively honest, or both. According to the Merriam-Webster Dictionary, it comes from the Anglo-Norman language.[citation needed]

The word voir (or voire), in this combination, comes from Old French and derives from Latin verum, "that which is true".[citation needed] It is related to the modern French word voire, "indeed",[citation needed] but not to the more common word voir, "to see", which derives from Latin vidēre.[citation needed] William Blackstone referred to it as veritatem dicere,[1] which was translated by John Winter Jones as "To speak the truth".[2] However, the expression is now often interpreted by false etymology to mean "to see [them] say". The term is used (as le voir-dire) in modern Canadian legal French.

Historic use[edit]

In earlier centuries, a challenge to a particular juror would be tried by other members of the jury panel, and the challenged juror would take an oath of voir dire, meaning to tell the truth.[3] This procedure fell into disuse when the function of trying challenges to jurors was transferred to the judge.

Use in Commonwealth countries, Ireland and Hong Kong[edit]

In the United Kingdom (except Scotland), Cyprus, Hong Kong, Ireland, Australia, New Zealand, Papua New Guinea and Canada, it refers to a "trial within a trial". It is a hearing to determine the admissibility of evidence, or the competency of a witness or juror.[4] As the subject matter of the voir dire often relates to evidence, competence or other matters that may lead to bias on behalf of the jury, the jury may be removed from the court for the voir dire.

The term has thus been broadened in Australian jurisdictions to include any hearing during a trial where the jury is removed. The High Court of Australia has noted that the voir dire is an appropriate forum for the trial judge to reprimand counsel or for counsel to make submissions as to the running of the court to the trial judge.[5]

Under Scots law, jury selection is random, and there are a few well-defined exclusions in criminal trials.[6]

In Canada, the case of Erven v. The Queen holds that testimony on a voir dire cannot influence the trial itself. This remains true even if the judge ruled against the accused in the voir dire. The judge is assumed to ignore what he or she heard during voir dire.[7] The jury is never present during a voir dire.

In Australia, the rule about voir dire is in section 189 of the Evidence Act 1995 (Cth): "On a voir dire parties can call witnesses, cross-examine opponent's witnesses and make submissions- as they might in the trial proper."[8]

Use in the United States[edit]

USA v. Mohammed Hashim – defense voir dire of military judge

In the United States, voir dire is the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury. "Voir Dire is the process by which attorneys select, or perhaps more appropriately reject, certain jurors to hear a case."[9] It also refers to the process by which expert witnesses are questioned about their backgrounds and qualifications before being allowed to present their opinion testimony in court. As noted above, in the United States (especially in practice under the Federal Rules of Evidence), voir dire can also refer to examination of the background of a witness to assess their qualification or fitness to give testimony on a given subject.[10] Voir dire is often taught to law students in trial advocacy courses.[11]

Dramatic examples in fiction[edit]

The play Inherit the Wind has an example of the legal process in terms of jury selection where the attorney for the defense, Henry Drummond, struggles to arrange a reasonably unbiased jury in a small town where the public sentiment is blatantly favoring the prosecution. However, the play has Drummond forced to entirely use his limited number of peremptory challenges to weed-out prospective jurors, even when they are so obviously prejudiced in the prosecution's favor to the point of bellowing their opinions on the stand that most should be struck for cause.

The Academy Award-winning film My Cousin Vinny has a scene depicting the voir diring of the defense attorney's fiancée who is summoned to the stand as an expert in general knowledge of automobiles. The prosecution is highly skeptical of her qualifications since she states that she is an unemployed hairdresser, but also has extensive work experience as a mechanic in her family's automotive business. With that doubt in mind, the prosecution asks a highly technical automotive question about a specific automobile make, model, year, engine size, and carburetor type, and she refuses to answer what she considers an invalid question. At the request of the court for a clarification, she explains in exacting detail why the question is deceptive, which is because the prosecution asked about a vehicle that never existed per the specifications. She then goes on to explain when the vehicle described was actually first manufactured and provided the answer to the prosecutor’s question for that model year, being the closest match. Surprised at such a detailed and authoritative answer, the prosecutor concludes the voir dire, saying she is acceptable as an expert witness.

In the television series Bull, a Hollywood version of the process of voir dire plays a central role in nearly all episodes, with key elements of the psychological makeup of potential jurors meshed with the elements of the forthcoming trial being the factor for the decision whether to accept or "strike" (remove) a potential juror.

See also[edit]

References[edit]

  1. ^ Blackstone, William. Blackstone's Commentaries on the Laws of England. Book 3, Ch. 23. p. 394. A juror may himself be examined on oath of voir dire, veritatem dicere .... 
  2. ^ Jones, J. (1823). A Translation of All the Greek, Latin, Italian, and French Quotations which Occur in Blackstone's Commentaries on the Laws of England, And Also in the Notes of the Editions by Christian, Archbold, and Williams. Vol. III. p. 197. 
  3. ^ Blackstone's Commentaries, vol. 3 p. 364.
  4. ^ Duhaime, Lloyd. "Voir Dire definition". Duhaime's Legal Dictionary. Duhaime.org. Retrieved 4 April 2011. 
  5. ^ Moles, Robert N.; Sangha, Bibi (3 May 2007). "Jago v The District Court of NSW and others (1989) HCA 46". Networked Knowledge. Retrieved 4 April 2011. 
  6. ^ "Does US jury system make justice a joke?". The Scotsman. Retrieved 25 May 2015. 
  7. ^ "a voir dire cannot influence the trial itself"
  8. ^ Jill Hunter et al, The Trial (The Federal Press, 2015) 55
  9. ^ Cleary, Gordon P.; Tarantino, John A. (2007). Trial Evidence Foundations. Santa Ana, Calif.: James Publishing. Section 201. 
  10. ^ Mueller, Christopher B.; Kirkpatrick, Laird C. (2009). Evidence. Aspen Treatise Series (4th ed.). New York: Aspen Publishers. §§6.2, 6.59, 7.14. ISBN 978-0-7355-7967-5. OCLC 300280544. 
  11. ^ Lubet, Steven; Modern Trial Advocacy, NITA 2004 pp. 240, 541

External links[edit]