Exercise 17

During voir dire, a member of the jury panel asks to respond to a prosecution question at the bench, outside the hearing of other panelists and the public. The judge waives the juror and attorneys to the bench. The juror and prosecutor arrive at the bench while defense counsel is still gathering his notepad and pen. Upon his approach, defense counsel hears the prosecutor and juror already engaged in back-and-forth questioning and answering. Defense counsel interrupts and objects to any discussion taking place without him being present.

How should the judge respond?

A. The court should summarize what was being said for defense counsel's benefit then continue with the individual voir dire.

Answer A is incorrect. As noted in State v. Martinez, 99 N.M. 353, 357 (1983), the extent of voir dire is left to the sound discretion of the trial court, limited only by essential demands of fairness. While the judge would most likely provide an accurate summary of what the prosecutor and juror had said, the more reasonable and fair approach would be to have them each restate, with the judge confirming to defense counsel the accuracy of the restatements. Thereafter, the court should always ensure everyone is present and ready for individual voir dire before beginning the process. Please select another answer.

B. The court should instruct the prosecutor and juror to restate exactly what was asked and answered, confirm to defense counsel that the restatements are correct and continue with the individual voir dire with both counsel present.

Answer B is correct! As noted in State v. Martinez, 99 N.M. 353, 357 (1983), the extent of voir dire is left to the sound discretion of the trial court, limited only by essential demands of fairness. The judge should have prevented the prosecutor and juror from stating anything to each other until defense counsel arrived. That not having occurred, the fairest approach is to have them restate the exchange and for the judge to confirm to defense counsel the accuracy of the restatement.

C. The court should advise defense counsel that nothing of relevance to the case or jury selection was stated and continue with the individual voir dire at the bench with both attorneys present.

Answer C is incorrect. Given the different roles and perspectives of judge and defense counsel, the judge's assurance that nothing of relevance was said is not a proper exercise of discretion and does not comport with the essential demands of fairness, as required. See State v. Martinez, 99 N.M. 353, 357 (1983). Rather, the fairest approach is to have the prosecutor and juror restate the exchange and for the judge to confirm to defense counsel the accuracy of the restatement. Please select another answer.