Voir dire (/ /) is a legal phrase that refers to a variety of procedures connected with jury trials. It originally referred to an oath taken by jurors to tell the truth (Latin: verum dicere), i.e., to say what is true, what is objectively accurate or subjectively honest, or both. It comes from the Anglo-Norman language.
The word voir (or voire), in this combination, comes from Old French and derives from Latin verum, "that which is true". It is not immediately related to the modern French word voir, which derives from Latin vidēre ("to see"), though the expression is now often interpreted by false etymology to mean "to see [them] say".
In earlier centuries, a challenge to a particular juror would be tried by other members of the jury panel, and the challenged juror would take an oath of voir dire, meaning to tell the truth. This procedure fell into disuse when the function of trying challenges to jurors was transferred to the judge. Libertarians have been critical of "subject matter voir dire," believing that voir dire is properly only used to eliminate jurors who have a legal conflict of interest in the outcome of a case. Defense attorneys, in specific, have stated that voir dire virtually guarantees a guilty verdict, by removing jurors who are predisposed to jury nullification of law. Iloilo Jones, Don Doig, and Larry Dodge, of the Fully Informed Jury Association, have all stated that the practice of subject matter voir dire should be entirely abolished. Lysander Spooner, a Civil War era abolitionist and libertarian legal theorist, noted that Northern judges were removing abolitionists from juries as a way of enforcing the Fugitive Slave Law, thus defeating the "common law" purpose of the jury.
Use in Commonwealth countries
In the United Kingdom, Cyprus, Hong Kong, Ireland, Australia, New Zealand, and Canada (and sometimes in the United States of America) it refers to a "trial within a trial". It is a hearing to determine the admissibility of evidence, or the competency of a witness or juror. As the subject matter of the voir dire often relates to evidence, competence or other matters that may lead to bias on behalf of the jury, the jury may be removed from the court for the voir dire.
The term has thus been broadened in Australian jurisdictions to include any hearing during a trial where the jury is removed. The High Court of Australia has noted that the voir dire is an appropriate forum for the trial judge to reprimand counsel or for counsel to make submissions as to the running of the court to the trial judge.
Use in the United States
In the United States, it now generally refers to the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury. "Voir Dire is the process by which attorneys select, or perhaps more appropriately reject, certain jurors to hear a case." It also refers to the process by which expert witnesses are questioned about their backgrounds and qualifications before being allowed to present their opinion testimony in court. As noted above, in the United States (especially in practice under the Federal Rules of Evidence), voir dire can also refer to examination of the background of a witness to assess their qualification or fitness to give testimony on a given subject. Each of these types of voir dire is taught to law students in Trial Advocacy courses.
- Blackstone's Commentaries, vol. 3 p. 364.
- "Jury Nullification: The Evolution of a Doctrine" by Clay Conrad
- "We, The Jury" by Jeffrey Abramson
- "Send In The Waco Killers: Essays on the Freedom Movement 1993-1998," pgs. 91-147, "Voir Dire, A French Term for Jury Stacking" by Vin Suprynowicz
- "Surviving Voir Dire" by Clay Conrad, essay, online at: http://fija.org/docs/BR_YYYY_surviving_voir_dire.pdf
- "An Essay on the Trial by Jury," Footnote 1, by Lysander Spooner, online at http://lysanderspooner.org/node/35
- Duhaime, Lloyd. "Voir Dire definition". Duhaime's Legal Dictionary. Duhaime.org. Retrieved 4 April 2011.
- Moles, Robert N. (3 May 2007). "Jago v The District Court of NSW and others (1989) HCA 46". Networked Knowledge. Retrieved 4 April 2011.
|last2=in Authors list (help)
- Cleary, Gordon P.; Tarantino, John A. (2007). Trial Evidence Foundations. Santa Ana, Calif.: James Publishing. Section 201.
- Mueller, Christopher B.; Kirkpatrick, Laird C. (2009). Evidence. Aspen Treatise Series (4th ed.). New York: Aspen Publishers. §§6.2, 6.59, 7.14. ISBN 978-0-7355-7967-5. OCLC 300280544.
- Lubet, Steven; Modern Trial Advocacy, NITA 2004 pp. 240, 541