Voir dire

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Voir dire (/ˈvwɑːr ˌdiər/) 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 related to the modern French word voire, "indeed", but not to the more common word voir, "to see", which derives from Latin vidēre. However, the expression is now often interpreted by false etymology to mean "to see [them] say". The term is used (as le voir-dire) in modern Canadian legal French.

Historic use[edit]

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

Use in Commonwealth countries and Ireland[edit]

In the United Kingdom (except Scotland), Cyprus, Hong Kong, Ireland, Australia, New Zealand, Papua New Guinea and Canada (and sometimes in the United States) 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.[2] 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.[3]

Under Scots law, jury selection is random, and there are a few well-defined exclusions in criminal trials.[4]

In Canada, the case of Erven v. The Queen 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.[5] The jury is never present during a voir dire.

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."[6]

Use in the United States[edit]

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

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."[7] 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.[8] Voir dire is often taught to law students in trial advocacy courses.[9]

Dramatic examples in fiction[edit]

  • The play, Inherit the Wind, has an example of the legal process in terms of jury selection where the attorney for the defense, Henry Drummond, struggles to arrange a reasonably unbiased jury in a small town where the public sentiment is blatantly favoring the prosecution. However, the play has Drummond forced to use entirely his limited number of peremptory challenges to weed-out prospective juries even when they are so obviously prejudiced in the prosecution's favor to the point of bellowing their opinions on the stand that most should be struck for cause, which can be used as many times as necessary.
  • The Academy Award winning film, My Cousin Vinny, has a scene depicting the voir diring of the defence attorney's fiance who is summoned to the stand as an expert in general knowledge of automobiles. The prosecution, is highly sceptical of her qualifications since she states that she is an unemployed hairdresser, but also has extensive work experience as a mechanic in her family's automotive business. With that doubt in mind, the prosecution asks a highly technical automotive specification question about a specific automobile make and model, and she refuses to answer what she considers an invalid question. At the request of the court for a clarification, she explains in exacting detail why the question is a deceptive trick one because the prosecution asked about a make and model that is historically irrelevant as per the specification asked about, but then explains the closest actual automobile with the exact specifics asked. Surprised at such a detailed and authoritative answer, the prosecutor concludes the voir dire saying she is acceptable as an expert witness.

See also[edit]

References[edit]

  1. ^ Blackstone's Commentaries, vol. 3 p. 364.
  2. ^ Duhaime, Lloyd. "Voir Dire definition". Duhaime's Legal Dictionary. Duhaime.org. Retrieved 4 April 2011. 
  3. ^ 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. 
  4. ^ "Does US jury system make justice a joke?". The Scotsman. Retrieved 25 May 2015. 
  5. ^ "a voir dire cannot influence the trial itself"
  6. ^ Jill Hunter et al, The Trial (The Federal Press, 2015) 55
  7. ^ Cleary, Gordon P.; Tarantino, John A. (2007). Trial Evidence Foundations. Santa Ana, Calif.: James Publishing. Section 201. 
  8. ^ 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. 
  9. ^ Lubet, Steven; Modern Trial Advocacy, NITA 2004 pp. 240, 541

External links[edit]