Posted by: Taylor Mossman-Fletcher on Apr 12, 2021
The Constitution states that the right to trial by jury shall remain inviolate—meaning it should remain free or safe from injury or violation. Yet, as trial lawyers know all too well, the jury trial has walked the “death by a thousand cuts” path for many years now. Attacks on the jury trial as it was originally intended manifest through tort reform, forced arbitration, lack of access to the courts perpetuated in filing fees and back logs, and even limitations on attorney-conducted voir dire.  It is that last cut—voir dire—that trial lawyers can still attempt to salvage.1
Trial lawyers should consider bringing, and courts ought to grant, motions to preserve latitude on attorney-conducted voir dire for a few reasons: (1) the purpose of voir dire is to seat an impartial jury; (2) that purpose, and the interests of judicial economy, are best achieved when the parties’ attorney(s) conduct voir dire; and (3) a plain reading of I.R.C.P. 47, in conjunction with Idaho’s “great latitude” rule,2 indicates that after the trial court’s initial questioning of prospective jurors, the trial court should resign itself to a supervisory role—and leave the parties’ attorney(s) to direct the remainder of voir dire.
The purpose of voir dire is to ensure an impartial jury is seated so that the parties may enjoy their right to a fair trial. The Idaho Supreme Court has repeated “many times” that “the right to a fair trial before an impartial jury is fundamental to both the U.S. Constitution and the Idaho Constitution.”3 Voir dire also necessarily requires that the parties’ attorneys have a meaningful opportunity to examine the jurors for removal for cause and intelligently exercise their limited peremptory challenges.4 That “meaningful opportunity” requires that courts not impose harsh time limits on questioning, nor should the court ask weighty rehabilitation questions of prospective jurors.
Additionally, the interests of judicial economy are best served by preserving the attorneys as the primary voir dire examiners. Attorneys are in a better position to identify potential juror dispositions because, unlike the trial court during the early stages of a trial, the attorneys have a strong understanding of the complex facts of a case—uniquely enabling them to ask particularized questions regarding bias. In United States v. Ledee, the Fifth Circuit elaborated upon this point:
[W]e must acknowledge that voir dire examination in both civil and criminal cases has little meaning if it is not conducted by counsel for the parties. A judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case. The court does not know the strength and weaknesses of each litigant’s case. Justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed.5
Furthermore, a survey of 124 federal judges by the Federal Judicial Center found that there is no significant increase in jury selection times between voir dire conducted by judges versus voir dire conducted by the attorneys.6 
One of the largest empirical studies of voir dire concluded with findings strongly suggesting that attorney-conducted voir dire leads to an atmosphere where prospective jurors are more likely to provide meaningful self-disclosure and thus produce a more effective voir dire examination.7   In the study, researchers looked at the “reciprocity effect”8 and measured the degree of prospective juror self-disclosure under judge-conducted voir dire versus attorney-conducted voir dire.9  The study found that prospective jurors “viewed the judge as an authority figure and were much more guarded in their responses.”10 Moreover, researchers observed that “from the direction and magnitude of the change scores that during a judge-conducted voir dire juror attempted to report not what they truly thought or felt about an issue, but instead what they believed the judge wanted to hear.”11 In contrast, when the attorneys conducted voir dire, the “jurors did not view the attorneys as possessing the same type of authority as the judge, which tended to result in a greater degree of self-disclosure” so long as the attorneys also self-disclosed and did not adopt a cold or aloof approach.12
Lastly, I.R.C.P. 47, read in conjunction with Idaho’s “great latitude” rule, directs that courts must, after their initial questioning, act as supervisor for the majority of voir dire while the parties’ attorney(s) act as primary examiners of the potential jurors. Subsection (f) of Rule 47 states that voir dire of the prospective jurors is initially directed by the court. I.R.C.P. 47(f)(1). Next, subsection (f) states that after the trial court completes this initial examination, the parties “to the action must be permitted to question each prospective juror concerning qualifications to sit as a juror in the action.”13  Additionally, once the court has played its role as initial examiner, I.R.C.P. 47(f)(2) directs the trial court to resign itself to the role of supervisor during the remainder of voir dire.
Accordingly, for the purpose of saving that inviolate right to a jury trial, attorney-led voir dire should be preserved without intrusive boundaries on time and method. Otherwise, trial lawyers and their clients face the risk of yet another constraint on an already threatened right to a fair trial. So, if Idaho trial lawyers can collectively and consistently assert motions to protect this vital element to the trial—both in the criminal and civil settings—then they also ensure the livelihood of quality voir dire, and thus the prospect of justice rendered by a truly impartial jury.
1. Nathan Starnes (ITLA Member), Kurt Holzer (ITLA Past President) and Sean Wilson (3L, University of Idaho College of Law) are credited with assisting in this article.  Briefing on this issue will be provided to the ITLA brief bank.
2. See State v. McKeehan, 91 Idaho 808, 819, 430 P.2d 886, 897 (1967).
3. State v. Johnson, 163 Idaho 412, 418, 414 P.3d 234, 240 (2018).
4. See Darbin v. Nourse, 664 F.2d 1109, 1112–13 (9th Cir. 1981).
5. Id.
6. See Hans and Jehle, Avoid Bald Men and People With Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 CHI. KENT L. REV 1179, 1185 (citing a 1994 survey memorandum submitted by the Federal Judicial Center to the Advisory Committee on Civil Rules and Advisory Committee on Criminal Rules on October 4, 1994).
7. Frank P. Andreano, Voir Dire: New Research Challenges Old Assumptions, 95 ILL. B.J. 474, 476 (2007).
8. “At its most basic, reciprocity effects holds that the level of self-disclosure an individual will make depends on whether he or she first receives self-disclosure from the interviewer.” Id.
9. Id.
10. Id.
11. Id (quotations omitted).
13. Id.