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Published in the Daily Journal - 8/31/2004

By Dana Cephas

On August 10, the first day of his term in office, the American Bar Association's new President announced an initiative aimed at revolutionizing the role of jurors, one that could transform jurors from passive observers to active participants during the trial process. One of the provisions under consideration is to permit jurors to question witnesses during the trial.

A few states, including Colorado where Kobe Bryant is facing trial, recently enacted laws permitting jurors to ask questions during the trial. Some of those jurisdictions require the judge to pre-screen jurors' questions. But before we start permitting jurors to question the witnesses in federal trials, we must reexamine the procedures to question jurors during voir dire.

Contrary to popular belief, attorneys in federal court have no right to question prospective jurors during the jury selection process. News stories about high-profile defendants such as Martha Stewart, mislead the public into believing jury selection is always a long careful process, in which attorneys are permitted to grill prospective jurors about their biases and attitudes. Federal Judges may permit that in a standing-room-only trial being monitored by dozens of reporters, but justice works differently when John and Jane Doe are on trial in a deserted federal courtroom.

Federal law does not "require" a judge to permit any questioning by attorneys during voir dire. Federal judges are given broad discretion in determining how to conduct voir dire and may refuse to ask questions proposed by attorneys. The main amorphous requirement for jury selection as explained by the 9th U.S.Circuit Court of Appeals is that the voir dire must be "reasonably sufficient to test the jury for bias or partiality."

So, does "reasonably sufficient" require each potential juror to be examined for at least 30 minutes? For example, the judge in Stewart's case took four days to select a jury. But a similar experience is unlikely in a routine federal criminal case.

In the Central District, jury selection for trials of low-profile defendants is often a brief process. Trials are scheduled to begin on Tuesdays, and jury selection generally begins between 9:30 a.m. and 10:30 a.m., depending on the particular judge and the amount of pretrial issues. The jury pool for a criminal case is 45 persons, and in the majority of instances, the twelve jurors (plus alternates) are selected before noon; that is in less than three hours.

In some of the faster paced courtrooms, the jury - without attorney questions - may be selected in an hour. In those courtrooms, prospective jurors are asked several questions as a group (for example, "Are any of you related to a law enforcement?" or "Is there any reason you will be unable to be fair and impartial in this case") and speak only if they raise a hand in response to a particular question. For prospective jurors who never raise a hand, the only oral comments from those individuals relate to a recitation of their city of residence, their employment, their marital status, whether they have children, whether they have served on a jury, and if so, whether that jury reached a verdict.

A first-time federal-court juror with prior state-court experience may notice a difference, because questioning by attorneys is the norm in state court. However, the state Code of Civil Procedure specifically provides that in criminal (and civil) cases, "counsel for each party shall have the right to examine, by oral and direct questioning, any or all of the prospective jurors." The provision relating to civil trials explains that such questioning is required "in order to enable counsel to intelligently exercise both peremptory challenges and challenges for cause."

Although federal law does not require judges to permit attorney-conducted voir dire, some federal judges in the Central District do permit attorneys some time - generally 15 minutes to an hour in total - to question prospective jurors. And in some of those cases, attorneys' questions reveal juror biases resulting in challenges for cause.

Taking more time for voir dire or requiring federal judges to permit voir dire by attorneys will not guarantee that all biased jurors are identified (as demonstrated by the juror who allegedly lied in the Stewart case) and it is reasonable to conclude that selecting a jury with a group-wide colloquy in less than two hours results in juries with a greater number of biased members.

The same week, the ABA announced efforts to revitalize jury service, an ABA-sponsored group released the results of a study of the jury system, which found that if they themselves were on trial, the majority of Americans polled - 75 percent - would want their case to be decided by a jury, rather than by a judge. It is unlikely that those persons were told that if they were tried in federal court, the jury might be picked in an hour.

The ABA's recent announcement also explained that only about one-third of the 15 million people who are sent juror summonses actually report to a courthouse, and the announcement suggested that the proposed changes to a juror's role might increase the number of people showing up for jury duty.

Raising the pay for jury service might be a safer way to increase participation. Encouraging citizens to report for jury service by offering the chance to "act like a lawyer" carries the risk of attracting too many of the wrong volunteers. There can be little doubt that more than a few people will relish the opportunity to re-enact Henry Fonda's role in 12 Angry Men, and such jurors may spend most of their time trying to think up questions rather than paying close attention to the evidence.

Allowing questions from jurors without adequate voir dire will increase the risks of injustice unduly. Consider the result of a hypothetical criminal trial of former President Clinton or President Bush in federal court here in Los Angeles. In the highly-partisan times in which we live, the defense attorneys would want to know much more about 45 prospective jurors than could be revealed in one or two hours. For example, it might be useful to explore the attitudes of prospective jurors who regularly watch "The O'Reilly Factor" or Fox News or those who went to see Michael Moore's "Farenheit 9/11." It would certainly make sense to explore those types of issues in-depth before permitting such jurors to question witnesses.

Although most federal trial do not concern politicians or famous celebrities, the problems with allowing jurors to take a more active role in the case of John or Jane Doe are no less real. If we plan to offer new powers to jurors, we must first re-examine how we select the jury from the pool of candidates who appear for service. We must consider whether there are better alternatives for increasing participation rates. And we must ask whether we really believe whether questioning jurors in a group-wide colloquy will ensure everyone's right to a fair and impartial jury.

Every defendant will not need four days (as in Stewart's case) to pick a fair jury. However, picking a jury in two hours, with no questioning by the attorneys, is simply not the way any of us would want to be judged if we were on trial in federal court.

Allowing jurors to question witnesses may be a good thing someday, but lets put that off for another day. Today, we should focus on how we pick the jury when defendants without the stature of Bryant are on trial, and we should find safer ways to increase the jury participation rates.