Judicial Concerns in Voir Dire

Voir dire can involve some very personal and tough questions asked by complete strangers in a public setting. For stalking and harassment cases, inquiries can be extremely personal as they may delve into traumatic and impactful events in a person's life, and interpersonal relationships and dynamics.

Privacy Concerns for Juror Panelists

Uniform Jury Instruction (UJI) 14-120, titled "Voir Dire of Jurors by Court," recognizes that individuals on a jury panel, for whatever reason, might prefer to respond to questions in a setting more private than the courtroom. Therefore, this standardized initial voir dire explanation, read to the jury panel by the judge, contains an instruction to the panel that its members can advise the court and the attorneys of the desire to address questions in a more private setting.

Following the judge's reading of that instruction, attorneys will often remind the jury panel of the privacy option as they raise questions concerning potentially personal, emotional or embarrassing matters. However, if that does not occur, the judge can make a statement to the panel reminding it of the privacy option. The judge should do so in a neutral manner. An example of that would be the judge stating "Ladies and gentlemen, I remind each of you that you can request to respond to questions from either party or myself outside the presence of your fellow panel members and the other people observing this matter. Please just let us know if you would like to do so."

As needed, portions of voir dire can be conducted in the judge's chambers with only the judge, attorneys, the defendant, and the specific jury panel member present. Another option is for those individuals to remain in the courtroom and to have everyone else exit during the questioning.

Judicial Participation in Voir Dire

The judge overseeing voir dire, who is listening first hand to the attorneys' questions and the jury panel members' responses, is in the best position to determine whether voir dire has sufficiently exposed any biases that may preclude jurors from acting fairly and impartially. State v. Martinez, 2002-NMCA-036, ¶35. As previously noted, the judge has the right to control and limit voir dire with the limitation being the ultimate need for fairness in the process. To ensure fairness in the process to both the prosecution and defense, the judge should consider doing the following regarding voir dire:

• Determine in advance how much time to allow for voir dire, advise the attorneys of that allotted time frame and work to ensure that it is divided as equally as possible between the two sides.
• If the need arises to step in to resolve a dispute between the parties or deal with an objection, call the attorneys to the bench and take care of it outside the earshot of the jury panel. Alternatively, remove the jury panel from the courtroom and deal with the issue outside of its presence. The goal with either of these methods is to resolve the dispute and move on with voir dire while maintaining the critical neutrality of the judge and communicating that to the panel.
• If asking the jury panel questions of his or her own, the judge should make efforts to do so sparingly and in a way that does not create the perception that the judge has "taken a side" in the case. In other words, in addition to working to ensure fairness between the prosecution and defense, the judge wants to present him or herself as being fair to both parties and neutral in the case. This is especially critical in stalking and harassment cases where the behavior can be seen as bizarre on its face and responses provided by jury panelists during voir dire can perhaps promote similar responses and reactions.