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Federal trial judge provides further support for lawyer-conducted voir dire

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When I am in a room of trial judges presenting a seminar, I sometimes urge them to expand the opportunity for lawyer-directed voir dire jury questioning/selection rather than letting judges do it. In Virginia, the law permits lawyer-directed voir dire, whereas custom permits it in Virginia’s Western District federal trial courts, so I do not feel a need to address this issue to judges in those jurisdictions. Maryland appellate caselaw fiercely permits trial judges to prohibit lawyer-directed voir dire, which Maryland trial judges usually do prohibit. In the remaining jurisdictions where I practice, which is the District of Columbia and the Eastern District of Virginia, lawyer-directed voir dire is rare.

Now, I have an article to give judges from one of their own, promoting lawyer-directed jury voir dire, but also concomitantly promoting the elimination of peremptory challenges as a way to eliminate Batson problems:

I propose twin solutions to the problems of judge-dominated voir dire and the flawed Batson challenge process. The first solution is to increase lawyer participation in voir dire, thereby placing the primary onus to detect and address the implicit bias of jurors in the hands of the trial participants best equipped to do so. The second solution is the total elimination of peremptory challenges, a solution to the failed Batson process perhaps as brutally elegant and effective as Alexander the Great’s solution to the Gordian Knot. True, there is some tension between increasing lawyer participation in voir dire while stripping lawyers of peremptory challenges. But it is my contention that the two proposed solutions work best in tandem. The implicit bias of jurors can be better addressed by increased lawyer participation in voir dire, while the implicit bias of lawyers can then be curbed by eliminating peremptory strikes and only allowing strikes for cause.” Judge Mark W. Bennett (U.S. District Court, D.N.D.IA.) “Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions,” 4 Harvard Law & Policy Review 149, 151 (2010).

I plan to have Judge Bennett’s foregoing article at the ready anytime I try to convince a judge to permit even five to ten minutes of lawyer-directed voir dire.

ADDENDUM: Thanks to Professor SunWolf — who has been a tremendous inspiration and teacher to me ever since I met her in 1994 — for alerting me to Judge Bennett’s article, in her recent Twitter post at @jurytalk.

Here are some voir dire resources:

Professor SunWolf has several books and other writings about the need for lawyer-directed jury voir dire and about effectively conducting voir dire.

– Dealing with tough jury voir dire issues head-on.

– The late Cat Bennett’s website, with sample voir dire.