Miscellaneous

Voir Dire

By on • ( 38 Comments )

About every year or so I get subpoenaed to serve as a slave to the jury system. I go to court where I, and dozens of other conscripts, are subjected to a process called “voir dire.” This is where we are put on trial to determine if we’re suitable to serve in a trial.

“Voir dire” is a Latin legal term that’s hard to pronounce. So let’s just call it “VD.”

I got my most recent case of VD a few months ago. About 60 fellow citizens and I reported to the Jury Assembly Room at the appointed day and hour. But only about half of us got VD. The rest stood in line to plea with the court clerk that they had better things to do, and she almost always granted them a 90-day deferral. I guess their VD could wait.

After our numbers whittled down to about 35, we were escorted by a deputy to the courtroom, which is the place where you get VD. There, before the hapless defendant, we were thoroughly examined by the judge and attorneys. Our privacy was exposed as we were subjected to penetrating questions.

The case involved a tippler who was fighting a drunk driving charge. His defense attorney was an old, Mexican barrister, somewhat unsteady on his feet, whom I assumed had a lot of courtroom experience, by his age and savoir faire.

He asked me if I drink alcohol. I told him no, and that alcohol is poison. I further added that I think drinking is stupid, whether you drive or not. He stepped backward, a surprised look on his face, upon hearing such sacrilege over the holy spirits that so many Americans worship.

He asked if my opinion about alcohol was so strong it would influence my decision in this case. “Uhhhh . . . noooo . . .” I responded, thoughtfully, “I’ll be fair.” I thought he needed a reassuring smile, but I was wearing a Covid mask. So I winked at him, instead.

He shook his head as if puzzled by my wink, then flumped into his chair and left me to the mercy of the prosecutor, for cross-examination.

She was a young, pretty lady, probably in her 20s, so I didn’t mind at all getting VD from her. But I assumed she had very little courtroom experience, just by her youthful appearance. Also, her demeanor seemed hesitant, shaky, and unsure.

With a naive look of hopeful expectancy, she asked me a routine, almost rhetorical question. She asked if I was willing to apply the facts to the law, and nothing else, to make my decision.

I responded with something I suppose is rarely heard in a courtroom. At least I’ve never heard anyone else say this while getting VD. I told her I like to see everything. The lights must be on. That I wanted to be human about this, and not a dead robot. So I would need to know if there were any extenuating circumstances in this case.

For instance, did the defendant drink a few beers, then accidentally injure himself and try to drive himself to the hospital? I asserted my desire to know WHY he did what he did, and not just WHAT he did. What was going on in his life? Facts and law are not sufficient, I declared. I insisted that I wanted to be a real, human juror if I was to make a decision about guilt or innocence.

I couldn’t see most of her face, due to her mask, but worry lines creased her forehead. I guess her training had not prepared her for this. She seemed astonished that any juror would have the gumption to insist upon being human. And she could barely pronounce the word, “extenuating,” when she repeated it back to me.

She peppered me with questions from all angles, and I got the sense she was trying to trip me up, so I would finally commit myself to just considering the facts and the law, and nothing more. But I’ve had VD before. This shit was old hat for me. Although it stung and burned, I gritted my teeth and stood my ground. Finally she surrendered and returned to her chair, with a flump and a sigh.

After this the judge called for a quick recess in an anteroom for a private sidebar with the attorneys. Immediately after he returned to the bench, he looked at me and uttered, “Juror #15, Tippy Gnu, you are excused.” Hmmph. Just like that, with no explanation, and not even a thank you. He’d thanked all the others he’d given VD, whom he’d previously excused. It’s as if I was not very good in court.

The Sixth Amendment to the U.S. Constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .” To me this means that the only constitutional requirement of a juror is that he or she be impartial. It doesn’t say we can’t be human and consider extenuating circumstances, and that we have to stick with just the facts and the law, like we’re robots.

It seems to me that VD is a way for the judge and the prosecutor to intimidate potential jurors. They want to scare them into considering only the facts and the law, and nothing else. That leaves all discretionary power to the judge, when considering extenuating circumstances.

More importantly, it also allows unjust laws to linger, since jurors are pressured to consider only the facts and the law, and not whether they agree with the law.

So potential jurors are pressured to waive their right to be human. And when gigantic pools of citizens are subpoenaed and given VD, it’s easy enough to find 14 of them who are willing to just lay there and reduce themselves to the robotic minions the judge and prosecutor so desire.

Or maybe not. Maybe the lucky 14 jurors who were selected were clever enough to keep their desire to be human a secret. Because I checked the court records online, a few days after my VD cleared up. The defendant was found not guilty.

Categories: Miscellaneous

38 replies »

  2. I laughed all the way through this, Tippy. Like, every time I encountered VD in the story. Have you ever seen the show BULL? It’s about something called Trial Science, how winning a case comes down to voir dire, tossing out jurors who would eff things up for you because of their belief systems. Watch it sometime, paying particular attention to the weird questions they ask to eliminate jurors (and why). It’s fascinating.

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  3. Wow! You’ve brought up something that I don’t think most people realize. The whole Constitutional intent of a “jury of peers” is that the application of law should include both context and the justness of the law itself. And yet (and I’m not kidding), if you never want to be called for a jury selection again, simply register “Libertarian”.

    The one time I actually sat on a jury supposedly almost resulted in a mistrial. Or so I was told after asserting to a judge and defense attorney that I refused to act ignorant. I suppose this will all be fixed some day with a piece of software.

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    • Hmm, I’m registered non-partisan. But I don’t mind serving on a jury. I just mind being told I have to act like a robot, and not consider context or the justness of the law.

      Good for you, for standing your ground against that judge and lawyer. If I was on trial, I’d want my jurors to insist on being well-informed. If I was not guilty, that is.

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      • Well, you might not have been so happy as the defendant in my case. I merely pointed out a hole in the defense that was big enough for a modestly observant fourth-grader to walk through. I think the judge was irritated that he had no control over the penalty for a conviction (CA’s 2-year minimum for gun crimes); he just couldn’t say that. In this case, however, I was concerned more about the safety of the victim.

        I think it’s important to take part in the jury-system. But it’s been so fragrantly violated by the VD system anymore that I wonder if it’s become an insult to actually be selected? I can only imagine what it took for the Johnny Depp vs. Amber Heard case.

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        • Hell, if the defendant was guilty and a danger to others, then I’m glad he was convicted.

          That Depp/Heard case seems like a carnival. I wouldn’t want to be a juror on a case that lasted so long, but as trials go, I think it would at least be a fun trial to watch.

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  8. I always consider it a victory to get excused by preemptory challenge rather than for cause when an attorney is clearly trying to get rid of me without wasting a preemptory challenge. Although I did fail spectacularly back in 2004 when I served four weeks on murder trial.

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      • Yes, it was interesting and educational and not as boring as some tax evasion case. I had just retired and had the time. I started Voir Dire as Juror #64 but they were down to one preemptory challenge and #65 was a truly crazy lady, so I backed into the jury as first alternate. When a juror was excused halfway through the trial, I ended up fully seated.

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  9. Long answer. He was guilty but two jurors found out that they could not convict on anything less than his admission in open court. Theoretically they should have been removed in Voir Dire but they did not know until they were in the moment. It was a well witnessed gang killing in a very public place (the victim had gotten out of jail that very day), he had a very identifiable scar, he had confessed on a phone call to a friend that got past the hearsay rule, he swore he never met his alibi witness but they were exposed as long time cellmates. Some witnesses left the state, others had to be arrested and reluctantly testified against him. Ironically it was the same time Scott Peterson was convicted on circumstantial evidence of murdering his pregnant wife, a case all over the national news. The defendant in my case had been in jail for a year because he could not make bail and his lawyers were stalling, hoping witnesses would be harder to find. After the mistrial he went back to jail to await another trial. I have no idea what happened to him.

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