“Ask me no questions, and I’ll tell you no fibs.”1
So The Legal Genealogist heads off again this morning, at yet another oh-dark-thirty, to fulfill her civic duty as a prospective juror.
Use of the word “prospective” is, of course, deliberate, since there ain’t no way anybody’s letting me on this jury.2
I was wrong about how yesterday would be “sitting around for hours in a cold, drafty room on hard, uncushioned chairs.” The chairs are now cushioned… barely… and for nearly two hours yesterday afternoon I ended up standing in the back of a courtroom while a very careful and very deliberate judge conducted a very careful and very deliberate and very very s-l-o-w voir dire.
And what’s a voir dire? I’m so glad you asked.
Because, frankly, even if you didn’t ask, I’m gonna answer anyway, because I’m gonna have to be part of one today, and besides it’s more cool legal geek terminology that you’ll run across often in older reported cases and court records.
The term itself is legal French, and means “to speak the truth.”3 And its most common meaning generally back when trials started to be used (as opposed to, say, trial by battle) was an inquiry of a witness to determine whether the witness had some interest in the outcome of the case. If he did, he wasn’t allowed to testify. A 1764 English dictionary, for example, defined voir dire as “in law, a term used where … it is prayed upon a trial at law that the witness may on oath speak the truth, whether he shall get or lose by the matter in controversy; and in case it appears that he is unconcerned and disinterested, his testimony is allowed, otherwise it is not.”4
Even as late as 1891, when Henry Campbell Black first published his A Dictionary of Law, it had much the same generally accepted meaning: “This phrase denotes the preliminary examination which the court may make of one presented as a witness, where his competency, interest, etc., is objected to.”5
Yet that isn’t all it meant, even in the early days. Even in the 1760s, when William Blackstone was publishing his groundbreaking Commentaries on the Law of England, the term was also used to describe an inquiry of a juror about the juror’s ability to sit fairly in a case: “A juror may himself be examined on oath of voir dire, veritatem dicere, with regard to such causes of challenge, as are not to his dishonour or discredit; but not with regard to any crime, or anything which tends to his disgrace or disadvantage.”6 In other words, a juror could be asked about prejudices or biases that would disqualify him as a juror.
Now, to be sure, Blackstone also commented on the use of voir dire to inquire of a witness to disclose the witness’ interest in the outcome.7 And that was by far the more common use of the term. In fact, the very first court opinion I can find in the United States that refers to a voir dire of a juror, instead of a voir dire of a witness, is a 1794 New Jersey case where only the headnote to the case — and not the court opinion itself — mentioned a juror who, when challenged, was “sworn on his voir dire.”8
From the earliest reported American cases to the beginning of 1850, there were only 50 reported opinions in all of the state courts that mentioned the term voir dire in the context of an inquiry of a juror. Between 1 January 1850 and 31 December 1899, there were 742 such reported opinions. And in 2012 alone, there were 929 reported state cases using the term that way.
So what exactly is a voir dire of a juror? It’s the series of questions asked of a juror, usually by the judge but sometimes by the lawyers, designed to expose any prejudices, biases or other matters that might impair the juror’s ability to decide the case fairly and impartially. What kinds of things disqualified a juror, and what kinds of things the juror could be asked about, have changed over time. In 1805 Tennessee, for example, it was perfectly okay for a juror to have formed an opinion about a case as long as he hadn’t voiced that opinion to anyone else.9 And take a look at the limits in Blackstone’s day — a juror couldn’t be asked about “any crime, or anything which tends to his disgrace or disadvantage.”10
But today, in one New Jersey courtroom, “For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath.”11 The questions must “probe the minds of the prospective jurors to ascertain whether they hold biases that would interfere with their ability to decide the case fairly and impartially.”12
While “intrusive questions, which unnecessarily invade the privacy interest of jurors, should be avoided,”13 every juror is asked a wide variety of questions about knowledge of the case, the area where the events took place, family or personal relationships with police officers and more, so that any possible biases can be disclosed…
And so that the defense attorneys will know that one juror — that one, standing in the back there — used to be a prosecutor…
Image: “Scene in a New Hampshire court,” lithograph, 1852;
Prints and Photographs Division, Library of Congress (http://www.loc.gov : accessed 7 Jan 2012).
- Oliver Goldsmith, She Stoops to Conquer (London : F. Newbery, 1773); digital images, Google Books (http://books.google.com : accessed 7 Jan 2013). ↩
- I mean really. It’s a criminal case, for cryin’ out loud, and I’m a former prosecutor. Even if I don’t get bounced for cause — and there’s, oh, about a 0.000001% chance that I won’t — one of the defense attorneys is bouncing me off this case with what’s called a peremptory challenge. That’s the right either side has to dump somebody just because. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1227, “voir dire.” ↩
- A New and Complete Dictionary of Arts and Sciences … (London : W. Owen, 1764), 834; digital images, Google Books (http://books.google.com : accessed 7 Jan 2013). ↩
- Black, A Dictionary of Law, 1227, “voir dire.” ↩
- William Blackstone, Commentaries on the Laws of England, Book the Third: Of Private Wrongs (Oxford : Clarendon Press, 1768), 364; html version, Yale Law School, Avalon Project (http://avalon.law.yale.edu/subject_menus/blackstone.asp : accessed 7 Jan 2013). ↩
- Ibid., 370 (“Interested witnesses may have been examined upon a voir dire, if suspected to be secretly concerned in the event, or their interest might be proved in court”). ↩
- Den, Ex Dem. Bickham v. Pissant & Lardner, 1 N.J.L. 254 (Sup. Ct. 1794). ↩
- Berry v. Wallen, 1 Tenn. 186, 187 (Tenn. 1805). ↩
- Blackstone, Commentaries on the Laws of England, Book the Third: Of Private Wrongs, 364. ↩
- New Jersey Court Rule 1:8-3(a). ↩
- State v. Erazo, 126 N.J. 112, 129 (1991). ↩
- Administrative Office of the N.J. Courts, Directive #4-07 (2007). ↩