In preface, I want to point out that, when I wrote the following article, the voir dire concepts I discuss were more in their infancy. Now, having becoming institutionalized, these concepts are lacking in the sort of novelty that the article conveys and are less of a vanguard of voir dire practices in Oregon. Regardless, the case law and legal authority supporting this article remain sound support for my discussion.
Since its emergence in Multnomah County courtrooms in the late 1980s, many Oregon judges have adopted a method voir dire which differs from the traditional “individual” voir dire method in at least two respects. First, before counsel poses any questions to the venire, the trial judge typically instructs the venire members to in turn answer eight to ten standard autobiographical questions. Second, in most instances, counsel is required to address the members of the prospective panel seated in the box and all potential panel replacements under preset time limits insufficient to allow in-depth individual questioning. Attorneys typically ask questions of the entire venire, request a show of hands, and, as the clock counts, question individual venire persons,
Unfortunately, the modern approach, when coupled with pre-set time limits, impinges upon voir dire’s traditional functions, namely to elicit sufficient information to allow the attorney to intelligently and effectively use peremptory challenges and to establish a basis for cause challenges. See, State v. Nefstad, 309 OR 523, 526 (1990). Pre-set time limits require attorneys to give up probing inquiry, attorneys should be prepared to challenge such limitations and thus, should be aware of the underpinnings of the right to conduct adequate voir dire.
Source and Scope of the Right to Adequate Voir Dire
An effective voir dire protects the litigant’s right to trial by fair and impartial jurors as guaranteed in criminal and civil cases by Article I, sections 11 and 17 of the Oregon Constitution. The right to a fair and impartial jury is a right that “is and should be guarded zealously by the courts.” Lambert v. Sisters of St. Joseph, 227 Or 223, 230 (1977).
The scope of the voir dire examination is placed within the court’s discretionary power to efficiently and expeditiously conduct the trial. State v. Barnett, 251 Or 234, 237 (1968). However, the court’s discretion is counterbalanced against counsel’s right to engage in relevant inquiry. Barnett, 251 Or at 238. Thus, a litigant is entitled to inquire into a venire person’s qualifications, including case-specific issues and individual predispositions or biases, Barnett, 251 Or at 238, or any interest or matter that may affect a the verdict because the right to an impartial jury means an impartial jury with relation to the actual issues litigated. Leishman v. Taylor, 199 Or 546, 556-57 (1953). Although counsel bears the burden to demonstrate that a particular inquiry is relevant, Johnson v. Hansen, 237 Or 1, 4-5 (1964), case law supports a diverse inquiry.
Counsel’s inquiry is not necessarily limited by a venire person’s answers. Barnett, 251 Or at 237. Indeed, counsel may inquire as to particular beliefs so that the parties may make their own determination whether a venire person will be impartial and accordingly exercise peremptory challenges. Barriett, 251 Or at 237.
However, to challenge for cause, there is a well established need for counsel to develop a record:
The court in exercising discretion must find from all of the facts that the juror will be impartial and fair and not be biased consciously or subconsciously. A mere statement by the juror that he will be fair and afford the parties a fair trial becomes less meaningful in light of other testimony and facts which at least suggest the probability of bias.
Lambert, 277 0r at 230.
Venire persons are excused for bias if they have “such a fixed attitude of mind that it would control [their] actions in some appreciable degree” when they assume the position of trier of the fact: State v. Humphrey, 63 Or 540, 548 (1912). Before a venire person is impaneled, the court mus be convinced in the exercise of its discretion that a probability of bias does not exist. Lambert, 227 Or at 230.
In addition, the presence of a biased juror is presumptively prejudicial. If after reviewing the voir dire record the appellate court determines that the trial court abused its discretion by failing to excuse a biased venire person and the litigant had exhausted all peremptory challenges, reversal and remand for a new trial is mandated. Lambert at 231.
III. Effective Voir Dire Takes Time
The modern voir dire method coupled with pre-set time limits is antithetical to the very process of eliciting information from individual venire persons regarding their potential biases. The time limitations, either explicit or implied, unduly restrict counsel’s inquiry. Simple math demonstrates that counsel’s voir dire time is extremely limited, rendering probative individual questioning impossible. Under the modern method each attorney has at his or her disposal less than a few minutes per venire person.
However, for a satisfactory inquiry, counsel needs the same flexibility available in a witness examination. Counsel must be free to proceed slowly, ask open ended questions, follow up on hedge words, and accurately mirror given answers to allow a juror to comfortably disclose feelings and experiences. Practical experience dictates that once counsel detects a suggestion of bias, they will need at least 10-20 additional minutes to develop the record. Throughout this process, counsel must simultaneously build trust with the venire to obtain necessary candor. This relationship cannot be built by rushing answers. See Jurywork: Systematic Techniques .§ 17.01 (Nat’l Jury Project 2d ed. 1996); Jury Selection Procedures in United States District Courts (Fed. Judicial Center 1982).
Furthermore, because of the limits on information, counsel will obtain a time constrained voir dire. Peremptory challenges must now be exercised to remove venire persons who, had time been allotted, may have demonstrated sufficient bias for challenge for cause. Peremptory challenges may no longer be reserved to remove venire persons whose undesirability does not rise to the level of actual bias. Time constrained voir dire forces counsel into the dilemma of choosing between developing one or two challenges for cause or superficially chatting with the venire and thereafter solely exercising peremptory challenges in the dark.
These principles are demonstrated in the following hypothetical in which a patron leaves defendant’s restaurant accident leaving a pedestrian dead. Counsel asks the venire for show of hands if they are social drinkers. Observing that a venire person did not raise her hand, Counsel proceeds:
Attorney: Mrs. Smith, I observed that you did not raise your hand.
Mrs. Smith: No, I didn’t. I personally don’t care who drinks, but I don’t drink.
Attorney: Mrs. Smith, would you share with me your feelings about alcohol?
Mrs. Smith: Well, I think it’s a free world. Some people drink, others don’t. It’s fine with me.
In time-limited voir dire, counsel simply does not have time to develop the record to support a challenge for cause and might instead earmark a peremptory challenge for Mrs. Smith or accept her answer on face value. Had time been available, counsel may have determined that Mrs. Smith’s view of alcohol is based on a fixed religious belief that biased the juror against the defendant and thus should be excused for cause. Alternatively, counsel may have determined that Mrs. Smith merely does not like the taste of alcohol and thus may be a qualified juror. However, under the modern method, counsel either has one less peremptory challenge or risks allowing a biased venire person to be impaneled.
In State v. Williams, 123 Or App 546, 860 P2d 860 (1993), the Court of Appeals considered whether the a trial judge had abused her discretion in arbitrarily limiting defense counsel’s voir dire to forty minutes. Although the Court did not reject the notion of preset time limits, it adopted a test for determining whether the use of a time limit is an abuse of discretion in a particular case:
In considering whether the trial court abused its discretion in limiting voir dire in this respect, we consider, among other factors, (1) the extent of the court’s initial examination of the venire panel; (2) whether defense counsel attempted to prolong voir dire; (3) whether the questions defense counsel was not permitted to ask were proper voir dire questions; and (4) whether defense counsel was permitted to examine prospective jurors who actually served on the jury.
Id. at 551 (citations omitted). The Court held that because the trial court’s initial questioning provided only general background information, counsel had not abused or prolonged the voir dire process, and most importantly, because counsel had been precluded from adequately questioning jurors about racial bias, the time limitation did not adequately provide defense counsel with “the opportunity to ascertain the existence of grounds of a challenge for cause or to obtain enough information to make an intelligent decision about whether to exercise peremptory challenges.” Id. at 552.
In some instances, judges who impose fixed time limitations grant some latitude in questioning on request. However, the very existence of fixed time limits places a chilling effect on counsel’s ability to effectively probe for actual bias and to intelligently utilize peremptory challenges. Instead of risking the court’s disapproval, counsel will often fit voir dire within time limits, overlook potential juror bias and exercise peremptory challenges based on limited information.
A system with presumptive time limits that preclude sufficient inquiry into bias and prevents the intelligent exercise of peremptory challenges may violate litigants’ constitutional and statutory rights to trial by fair and impartial jurors. Furthermore, counsel that fails to conduct a sufficiently probing inquiry, or alternatively, fully develop the record, and preserve issues for appeal potentially abandon duties owed to their client. As a matter of course, counsel should consider furnishing the court with a pretrial memorandum as to the issues of the case, areas of potential bias, and supporting law regarding challenges for cause to ensure adequate voir dire. Encouragingly, there is supportive case law in this jurisdiction and others against arbitrary limitation of relevant voir dire.
 Racial Bias – Ham v. South Carolina, 409 US 524 (1972)
Organizational Affiliations – State v. Dixon, 5 Or App 113 (1971)
Religious Beliefs – State v. Barnett, 251 Or 234 (1968)
Status as Children as Alleged Victims – State v. Elam, 37 Or App 365 (1978)
Jurors’ Occupations – Parks v. Cupp, 5 Or App 51 (1971)
Attitudes Towards Employment – Morford v. United States, 339 US 258 (1949)
Attitudes Towards Insanity Defenses – State v. Wallace, 170 Or 60 (1942)
Concepts of Self-Defense – Even the court’s instruction on burdens of persuasion does not preclude counsel’s discussion of burdens during voir dire. See Legislative Commentary to OEC 306. Everly v. State, 395 NE2d 254 (Ind. 1979)
Mental Concepts of Deliberateness and Premeditation – Counsel’s use of hypothetical questions concerning deliberateness and premeditation used by court to show effective probing of juror’s bias. State v. Humphrey, 63 Or 540 (1912)
Jurors’ Opinions on State Policy – State Highway Commission v. Hewitt, 229 Or 582 (1962)
Defendant’s Prior Convictions – State v. Ziebert, 34 Or App 497 (1978)
Prior Litigation Experience – State v. Nagel, 185 Or 486 (1949); State v. Miller; 10 Or App 636 (1972)
Exposure to the Case – State v. Humphrey, 63 Or S40 (1912); State v. McDonald, 231 Or 24 (1962)
Jurors’ Attitudes Towards Types of Witnesses – State v. Hoffman, 85 Or 276 (1917)