GUIDELINES FOR VOIR DIRE EXAMINATION IN JURY TRIALS
(AUTHORED BY JUDGE MARK KING LEBAN)
This memorandum is intended to set forth guidelines for defense counsel and prosecution in conducting voir dire examination. It is not intended to serve as a definitive list of permissible or impermissible questions, but to serve to help streamline the voir dire process, avoid confusing and unproductive questioning and preserve the rights of all parties to a fair and unbiased jury.
It is well settled that the purpose of voir dire is to secure an impartial jury, and "impartiality requires not only freedom from jury bias against the accused and for the prosecution but also freedom from jury bias against the prosecution and for the accused." Moody v. State, 418 So.2d 989, 993 (Fla. 1982). A trial judge's discretion in the conduct of voir dire by the defense and prosecution is broad and will not be disturbed on appeal absence a clear abuse of discretion. Peri v. State, 426 So.2d 1021 (Fla. 3rd DCA 1983). The determination of impartiality in which the demeanor of the prospective juror plays such an important part is particularly within the judge's province. Id. "The materiality and propriety of voir dire questions are to be decided by the judge.***It is the judge who controls the time and extent of the voir dire***, and the scope of examination." Id. at 1025. Further, where "the bounds of a proper examination are overstepped or the law is misstated by a party, immediate correction by the judge..." is appropriate. Id.
Problems in voir dire examination of prospective jurors arise in the posing of hypothetical questions, scenarios requesting the jury to commit itself to a particular verdict if a given set of facts is presented, and in preconditioning the jury to render a particular verdict. It is clear that "it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced." Dicks v. State, 83 Fla. 717, 93 So. 137, 137 (1922). [Emphasis added]. The Florida Supreme Court in Dicks further held that to ask a juror a question "purporting to contain an epitome of the testimony subsequently to be introduced, and ask whether he would acquit or convict upon such testimony, would have the effect of ascertaining his verdict in advance of his hearing the sworn testimony of the witnesses." Id.
Adhering to the Supreme Court's admonishments, the First District in Harmon v. State, 394 So.2d 121, 123 (Fla. 1st DCA 1980), held that "neither counsel for the State nor the defendant should question prospective jurors as to the kind of verdict they would render under any given state of facts or circumstances, and the trial court should not permit such questioning." In Smith v. State, 253 So.2d 465, 470 (Fla. 1st DCA 1971), the court held that "it is improper for the State Attorney or for that matter the defense attorney, to propose a question which causes the juror to predecide his vote for a conviction or an acquittal." 253 So.2d at 471. The Smith court also held that a juror may not be interrogated as to his or her attitude toward a particular witness who is expected to testify in the case, especially when one side or the other knows in advance that the other side has only one primary witness to prove its case.
In Headrick v. State, 237 So.2d 555, 556 (Fla. 2nd DCA 1970), the court held that counsel went too far in inquiring into the mental processes of the various jurors as to what their verdict would be in the event of some hypothetical or conjectural state of facts. The Second District held that the trial judge properly exercised his broad discretion in limiting and restricting counsel from inquiring into such mental processes of the jurors.
Another area of concern is repetition. After a trial court has carefully explained the general principles to a prospective jury panel concerning the presumption of innocence, reasonable doubt, and the Fifth Amendment right of a defendant not to testify, the parties may not engage in individualized questioning of prospective jurors concerning these same issues. Thus, in Coney v. State, 348 So.2d 672, 674 (Fla. 3rd DCA 1977), the Third District held:
This is not to say that judges in this Division will preclude either the state of defense from exploring the important concepts of the presumption of innocence, reasonable doubt, privilege against testifying, or any other crucial matter, simply because the judge has given a general statement of those principles prior to individualized questioning. However, repetitive questioning, especially to each and every juror, as to his or her understanding of these previously described principles will not be permitted in the discretion of the trial judge.
As previously observed, questions designed to precondition the jury and attempt to elicit a promise or commitment from the jury will not be permitted. An example of this appears in Gunn v. State, 641 So.2d 462, 464 (Fla. 4th DCA 1994), where defense counsel, knowing that two witnesses had identified Appellant as the perpetrator, attempted to question prospective jurors about their personal experiences, specifically whether they had ever thought they recognized someone only to discover that the person was a stranger. The court did not allow the questions posed, apparently concerned that "defense counsel was trying to go into the facts of the case and precondition the juror's response to the evidence and the credibility of the witness." The Fourth District held that the trial judge properly concluded that the questions during voir dire were designed to have the jurors pre-weigh the witnesses' credibility. Id.
A prosecutor was admonished in Renney v. State, 543 So.2d 420, 421 (Fla. 5th DCA 1989), for lecturing the jurors during voir dire on the burden of proof and the meaning of reasonable doubt. The prosecutor included a request that the jury commit to a finding of guilt "if we prove every element of the crime, but don't prove one particular fact." Further, the prosecutor explained to the jury "his concept of reasonable doubt, and then asked each prospective juror to individually commit to a guilty verdict if the state proved its case." Id. The Fifth District reversed the defendant's conviction based upon the prosecutor's improper voir dire questioning.
Similarly, in Saulsberry v. State, 398 So.2d 1017, 1018 (Fla. 5th DCA 1981), the prosecutor, during voir dire of the jury, set forth for the jurors "a hypothetical question which essentially embodied the facts of the case against the accused, thus attempting to, and probably succeeding in, obtaining at least a tacit commitment from the jurors to convict. This is wrong...".
In Stano v. State, 473 So.2d 1282, 1285 (Fla. 1985), the Florida Supreme Court held that the trial judge properly precluded defense counsel from questioning a prospective juror who had admitted she had heard pretrial publicity about the case and that she would "block it out." Defense counsel sought to question the prospective juror as to how she would block out the publicity and the trial judge precluded such inquiry. Since defense counsel had been permitted to ask the juror how the pretrial publicity would affect her deliberations, the Supreme Court held that the further questioning would have been repetitious and the Florida Supreme Court upheld the trial judge's exercise of discretion in restricting defense counsel's voir dire.
On the other hand, it is improper to restrict defense counsel's voir dire examination of prospective jurors relating to a defendant's anticipated affirmative defense, such as voluntary intoxication. Lavado v. State, 492 So.2d 1322 (Fla. 1986); Brown v. State, 614 So.2d 12 (Fla. 1st DCA 1993); Morton v. State, ___ So.2d ___ (Fla. 1st DCA 1996)[21 Fla. Law Weekly D304]. In the most recent such case, Morton, defense counsel sought to question prospective jurors about their attitudes towards alcohol and drugs, asserting that such questioning went to the heart of his defense. The trial judge only permitted counsel to inquire whether any jurors were prejudiced against persons who drank and if so, whether such feelings would interfere with the juror's ability to follow the law. The First District held that such restriction on counsel's inquiries deprived the defendant of his right to a fair and impartial jury. However, in Zamora v. State, 361 So.2d 776, 780 (Fla. 3rd DCA 1978), the Court held that the trial judge correctly prohibited defense counsel from asking jurors questions concerning their personal television viewing habits. The defense sought to raise the issue of "involuntary subliminal television intoxication." The Third District refused to allow the inquiry into specific television viewing habits of jurors, but acknowledged that the trial judge properly permitted questioning as to whether the jurors watched television, had heard of or formed any opinions as to the defense of "television intoxication" and whether or not the jurors believed the defense of insanity was "a gimmick." Accord, McClish v. State, 404 So.2d 144 (Fla. 5th DCA 1981)(no abuse of discretion in refusing to allow questions to prospective jurors as to their personal television habits).
It is hoped that the above material will help in formulating proper questions for voir dire examinations by both the state and the prosecution in jury trials in the Division. As observed, no litmus test is intended by this memorandum. It is the purpose of this discussion to channel your questioning into productive and informative inquiries so as to enable you to select fair and impartial juries.