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 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.
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.
Use in Commonwealth countries and Ireland
In the United Kingdom (except Scotland), Cyprus, Hong Kong, Ireland, Australia, New Zealand, 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. 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.
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 they heard during voir dire. 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."
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. Voir dire is often taught to law students in trial advocacy courses.
- Blackstone's Commentaries, vol. 3 p. 364.
- Duhaime, Lloyd. "Voir Dire definition". Duhaime's Legal Dictionary. Duhaime.org. Retrieved 4 April 2011.
- 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.
- "Does US jury system make justice a joke?". The Scotsman. Retrieved 25 May 2015.
- "a voir dire cannot influence the trial itself"
- Jill Hunter et al, The Trial (The Federal Press, 2015) 55
- 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