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Voir dire

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For other uses, see Voir dire (disambiguation).

Voir dire (/ˈvwɑːr dɪər/; often /vɔɪr daɪər/; from an Anglo-Norman term in common law meaning "to speak the truth") is a legal term for procedures during a trial that help a judge decide certain issues:

Etymology

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From Old French voir "true" (from Latin verus "true," from PIE root *were-o- "true, trustworthy") and from Old French dire "to say" (from Latin dicere "speak, tell, say," from PIE root *deik- "to show," also "pronounce solemnly").[1]

It originally referred to an oath taken by jurors to tell the truth (Latin: verum dicere).[2] It comes from the Anglo-Norman language.[3]

Historic use

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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.[4] This procedure fell into disuse when the function of trying challenges to jurors was transferred to the judge.

Commonwealth countries, Ireland and Hong Kong

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In England and Wales, Cyprus, Hong Kong, Ireland, Australia, New Zealand, Papua New Guinea and Canada, 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.[5] 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.

Under Scots law, jury selection is random, and there are a few well-defined exclusions in criminal trials.[6]

In Canada, the case of Erven v. The Queen[7] holds that testimony on a voir dire cannot influence the trial itself. This remains true even if the judge ruled against the accused in the voir dire. The judge is assumed to ignore what he or she heard during voir dire.[8] The jury is never present during a voir dire. However, since the evidence given at a voir dire may be redundant to evidence at trial, with the consent of the parties a procedure called a "blended voir dire" may be used to save time. In this procedure, evidence given in the voir dire, if then found admissible, is transferred into the main trial without having to be repeated.[9]

In Australia, the rule about voir dire is in section 189 of the Evidence Act 1995 (Cth): "On a voir dire parties can call witnesses, cross-examine opponent's witnesses and make submissions- as they might in the trial proper."[10] 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.[11]

United States

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USA v. Mohammed Hashim – defense voir dire of military judge

In the United States, voir dire is 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."[12] 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.[13] Voir dire is often taught to law students in trial advocacy courses.[14]

Colloquially, among attorneys and their staff, the term is used to describe the process of selecting a jury in some jurisdictions. Jury selection differs based on the court and locality where a trial occurs. The process of jury selection and managing voir dire is a key area of study for criminal trial attorneys.[15][16][17] The Center for Jury Studies,[18] a project of the National Center for State Courts, has studied voir dire, as has The American Bar Association,[19] and summaries of research conducted on voir dire are freely available in the OnlineJury Research Update (OJRU).[20]

See also

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References

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  1. ^ "Online Etymology Dictionary". www.etymonline.com.
  2. ^ "Voir Dire: to see them say, or to tell the truth?". Glossophilia. May 5, 2017. Retrieved January 8, 2019.
  3. ^ "voir dire". American Heritage Dictionary of the English Language (5th ed.). Houghton Mifflin Harcourt. 2019. Retrieved January 8, 2019. Anglo-Norman, to speak the truth
  4. ^ Blackstone's Commentaries, vol. 3 p. 364.
  5. ^ Duhaime, Lloyd. "Voir Dire definition". Duhaime's Legal Dictionary. Duhaime.org. Retrieved 4 April 2011.
  6. ^ "Does US jury system make justice a joke?". The Scotsman. Retrieved 25 May 2015.
  7. ^ "Erven v The Queen". Supreme Court of Canada. January 2001.
  8. ^ "Criminal Procedure". freelegalhelp.ca.
  9. ^ Fugazza, Léo (21 August 2018). "R. v. Cochrane, 2018 ABCA 80 - Summary". CanLII Connects. Retrieved 8 December 2022.
  10. ^ Jill Hunter et al, The Trial (The Federal Press, 2015) 55
  11. ^ Moles, Robert N.; Sangha, Bibi (3 May 2007). "Jago v The District Court of NSW and others (1989) HCA 46". Networked Knowledge. Retrieved 4 April 2011.
  12. ^ Cleary, Gordon P.; Tarantino, John A. (2007). Trial Evidence Foundations. Santa Ana, Calif.: James Publishing. Section 201.
  13. ^ 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.
  14. ^ Lubet, Steven (2004). Modern Trial Advocacy (Law School Edition, 2nd ed.). NITA. pp. 213–214, 276. ISBN 9781556819247.
  15. ^ "Voir Dire and Jury Selection — Judicial Education Center". jec.unm.edu. Retrieved 2022-04-22.
  16. ^ "Building a Better Voir Dire Process" (PDF). Center for Jury Studies.
  17. ^ Bardeen, Michael (May 1, 2015). "Voir Dire Training - ACLU Northern California" (PDF).
  18. ^ ncsc-jurystudies.org
  19. ^ "11 must-dos from a voir dire master".
  20. ^ "OJRU | Online Jury Research Update | ComCon Blog".
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