Voir dire: it's not just what's asked, but who's asking and how

Army Lawyer, Sept, 2003 by David Court

Voir dire is the first opportunity counsel may have to address the individuals who decide the fate of their clients. Counsel, however, have no right to conduct their own voir dire: "The military judge may permit the parties to conduct the examination of members or may personally conduct the examination." (2) The purpose of this note is to convince military judges to permit counsel-conducted voir dire, both general and individual, and to encourage all advocates, whether prosecution or defense, to use this opportunity. This note does not justify the process of voir dire--its place in the courts-martial practice seems beyond question. "[F]ew experienced trial advocates would doubt the importance of voir dire." (3)

Voir dire has several judicially recognized purposes: (1) to ensure impartiality; (2) to educate the panel about the facts and the law in the case; (3) to develop rapport with the members; and (4) to determine how to exercise challenges, both causal and peremptory. (4) Either the military judge or counsel may address these purposes. Advocates must be intimately familiar with the facts of their cases to address some of these recognized purposes, but only a courageous (and foolish) counsel would attempt to "indoctrinate" (5) a panel on the law, as that is clearly the military judge's function. (6)

The Military Judges' Benchbook (Benchbook), DA Pamphlet 27-9, lists twenty-eight questions that the military judge may use in voir dire. (7) Nine of these twenty-eight questions (two of which are potential follow-up questions) address the issue of impartiality, five in the context of sentencing; nine (two of which are potential follow-up questions) are related to the members' backgrounds and life experiences, which also relate to impartiality. (8) The final six questions teach the members about the law. Four of these concern reasonable doubt; and one question each concerns the burden of proof and credibility of witnesses. (9) None of these twenty-eight generic questions are designed to educate a panel about the facts of a case, nor are they designed to develop rapport with the members. (10) When the military judge asks these questions, it would be inappropriate for him to attempt to develop a rapport with the members because he later must instruct them to "disregard any comment or statement or expression made by [the military judge] during the course of the trial that might seem to indicate any opinion on [the military judge's] part." (11)

An advocate who asks focused questions can center the panel's attention much more effectively than the Benchbook's voir dire questions. Thus, there is a role for counsel-conducted general voir dire. Some military judges, however, may believe the following: (1) counsel-conducted voir dire wastes time; (12) (2) counsel do not know how to conduct voir dire well, or do not know how to develop causal challenges; (13) (3) counsel embarrass themselves or panel members with thoughtless or inartfully worded questions; (14) and (4) because most federal (Article III) courts do not allow counsel-conducted voir dire, (15) military judges should not either.

First, requiring counsel to submit written voir dire questions to military judges before trial enables counsel to revise improperly worded questions and helps eliminate the perception that voir dire may waste time. The military judge, at either a Rule for Courts-Martial (RCM) 802 or Article 39a session, can review the questions to determine their validity. (16) Military courts have expressly approved this procedure, (17) with the caveat that "the denial [at trial] of otherwise proper questions only because they had not been previously proffered is unduly restrictive and an abuse of discretion." (18) Second, this procedure also allows the military judge to mentor an eager counsel whose questions are inappropriate, saving the counsel and the panel embarrassment at trial. Since much personal and professional information about the panel members should be available through member questionnaires before voir dire, (19) counsel should limit background questions to case-specific information. Generally, military judges will not have previous knowledge of any case-specific facts. Therefore, the advocates may be best suited to articulate information to the military judge why a question is necessary, or explain it to the panel if they misunderstand the question.

Third, by mentoring counsel to conduct effective voir dire, military judges improve the system. If experienced military judges exercise the discretion to deny young counsel adequate voir dire opportunities because counsel do not conduct it well, how will young advocates ever learn to become experienced trial advocates, such as the one praised in United States v. Holt? (20) While RCM 912(f)(1)(A)-(N) clearly lists some of the common bases for challenges for cause, subparagraph (N) is broad enough to allow relevant inquiries beyond the generic questions in the Benchbook. (21) Consequently, counsel should be able to articulate the relevance of their proposed questions at RCM 802 or Article 39a sessions. If practice makes perfect, then providing young counsel with voir dire opportunities is one good way to cure imperfection.