What is Voir Dire?
Voir dire is a legal term that refers to the process of selecting a jury in a trial. It involves questioning potential jurors to determine if they are suitable and unbiased. I’ve heard it pronounced a different few ways: vwah-dyer, vor-deer, vwah-deer, voyeur-deer. Those probably all work.
As we all know, the 6th Amendment to the US Constitution says that in criminal prosecutions, “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…” So voir dire helps us achieve this constitutional promise of trial by impartial jury.
In California, the purpose of voir dire is simple: to eliminate biased persons from the jury. Code Civ. Proc. section 223(d). It is supposed to be conducted only in aid of the exercise of challenges for cause [italics added.] Challenges for cause are one of three categories of challenges in voir dire. Or is it four? I’m just going to talk about the Big 3 here. That is, challenges for cause, peremptory challenges and panel challenges. Below is some general information about each type of challenge.
Panel Challenges: I don’t see this often. Occasionally you’ll find something about it in the appellate reports. Panel challenges are challenges to the representation of the jury venire (entire panel of prospective jurors), either on equal protection grounds or on grounds that the panel does not contain a representative cross-section of the community. This sort of challenge is written in Cal. Code Civ. Proc. section 225(a).
Challenges for Cause: This is the big one and relates to a prospective juror’s bias - either actual or implied. Examples of things that would be considered actual or implied bias include: a relationship to either of the parties or the attorneys, an interest in the outcome (don’t see this a lot in criminal matters), and based on the nature of the charges (e.g., I love dachshunds so I might be sort of biased as a juror in an animal abuse case involving a dachshund. Not really, but you get the point.) Unlike peremptory challenges, there are no limits on the number of challenges for cause each side can exercise.
Peremptory Challenges: These are generally permitted for any reason not related to the prospective juror’s membership in a protected group or class (gender, race, ethnicity, religion, etc.) California AB 3070, which became effective January 1, 2022, increased transparency in the jury selection process by requiring an attorney exercising peremptory challenge to show by clear and convincing evidence that his or her action is unrelated to that juror’s membership in a protected group or class. The number of peremptory challenges permitted depends on the case being considered. The last time I checked, the number of peremptory challenges permitted in a misdemeanor case was 6 - down from 10 a few years earlier. In a felony case: 10 peremptory challenges. In a life case: 20. And I believe that in co-defendant cases each side gets an additional 2-4.
As an attorney, I think that voir dire is very difficult to do effectively. I think it also demands a ton of mental energy. And post-it notes. It can be totally exhausting, but I guess also kind of fun when you start jamming with prospective jurors. They sometimes have interesting perspectives on things.
So that’s my answer to “what is voir dire?” ANOTHER question I sometimes get is “how do I get out of jury service?” Don’t ask that question. Respond to your summons and read below what Charles Ogletree said about the importance of jury service:
“Today, perhaps as a measure of our progress, all races and all citizens groan equally loudly when the jury summons arrives in the mail. Today the right to participate occasionally becomes overshadowed with the obligations and inconvenience attendant with the summons. Yet, the reason why participation in jury service matters has not changed over the years. The constitutional strength of this country begins with the citizens. A jury gives ordinary people extraordinary power.”
