A MANUAL OF JURY TRIAL PROCEDURES - 2004
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Chapter Two: Jury Selection

2.7    Recurring Voir Dire Problems
         A. Civil Voir Dire   
         B. Criminal Voir Dire

A MANUAL OF JURY TRIAL PROCEDURES - 2004

1. Juror Veracity

A new civil trial is justified where a party demonstrates that (1) a juror failed to answer honestly a material question on voir dire, and (2) a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (in a product liability trial, a juror's failure to reveal that his son had been injured when a truck tire exploded did not justify a new trial). A juror's lack of candor regarding nonmaterial, collateral matters resulting in no bias or prejudice to the complaining party does not require the granting of a new trial. Coughlin v. Tailhook Ass'n, 112 F.3d 1052, 1059-62 (9th Cir. 1997). See also Pope v. Man-Data, Inc., 209 F.3d 1161 (9th Cir. 2000) (error for district court to grant new trial where neither dishonesty nor bias of juror was demonstrated, notwithstanding juror's failure to disclose requested information regarding litigation and collection action history).

2. Law Governing Challenges for Cause

Federal law governs challenges for cause. Even in diversity cases, federal law and not state law applies to challenges for cause. Nathan v. Boeing Co., 116 F.3d 422, 424 (9th Cir. 1997).

3. Prospective Juror's Employment

When a prospective juror is an employee of a party, the district court should examine the juror closely in order to determine whether any bias exists. Nathan, 116 F.3d at 425.

4. Court's Failure to Ask Questions

By inquiring about prejudices or biases concerning relevant areas, the district court need not explore general attitudes on these topics. Medrano v. City of Los Angeles, 973 F.2d 1499, 1507-08 (9th Cir. 1992) (court's overview of case concerning alleged police use of excessive force in attempting to subdue armed person overdosing on drugs and inquiry concerning any prejudices or biases of prospective jurors eliminated necessity of asking voir dire questions concerning attitudes about suicide, drug use, and firearms), cert. denied, 508 U.S. 940 (1993).

A MANUAL OF JURY TRIAL PROCEDURES - 2004

1. Juror Veracity

"The Sixth Amendment guarantees criminal defendants a verdict by impartial, indifferent jurors." Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.) (en banc), cert. denied, 525 U.S.1033 (1998). A juror's lying during voir dire may warrant an inference of implied bias. Dyer, 151 F.3d at 979. Simple forgetfulness does not fall within the scope of dishonesty. United States v. Edmond, 43 F.3d 472, 474 (9th Cir. 1994). "Whether a juror intentionally conceals or gives a misleading response to a question on voir dire about relevant facts in his or a relative's background may shed light on the ultimate question of that juror's ability to serve impartially." Fields v. Woodford, 309 F.3d 1095, 1105-06 (9th Cir. 2002) (A juror's omission of key facts during voir dire required a hearing to determine whether the juror had been intentionally misleading).

2. Areas to be Covered

"[A] defendant is entitled to a voir dire that fairly and adequately probes a juror's qualifications . . . ." United States v. Toomey, 764 F.2d 678, 683 (9th Cir. 1985) cert denied, 474 U.S. 1069 (1986). But see United States v. Payne, 944 F.2d 1458, 1474 (9th Cir. 1991) (in a child molestation prosecution, the court's questioning as to whether there was anything about the nature of the charges that would prevent a juror from being fair and impartial may be sufficient voir dire without exploring whether prospective jurors had been victims of child sexual abuse, accused of child molestation, or were associated with groups supporting child sex abuse victims), cert. denied, 503 U.S. 975 (1992).

a. Law enforcement officers. When important testimony is anticipated from a law enforcement officer, the court should inquire whether any of the prospective jurors would be inclined to give "greater or lesser weight to the testimony of a law enforcement officer, by the mere reason of his/her position." United States v. Baldwin, 607 F.2d 1295, 1297 (9th Cir. 1979). See also United States v. Contreras-Castro, 825 F.2d 185, 187 (9th Cir. 1987). "[W]hether a question need be asked about police credibility depends on various case-specific circumstances . . . ." Paine v. City of Lompoc, 160 F.3d 562, 565 (9th Cir. 1998) (referring to Baldwin factors; no error on facts presented).

b. Government witnesses. The court should ask, or permit counsel to ask, the prospective jurors whether they know of any of the government's witnesses. United States v. Washington, 819 F.2d 221, 224 (9th Cir. 1987). See also United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 1993) ("Although a trial court abuses its discretion in failing to ask prospective jurors any questions concerning acquaintance with any government witnesses, (citations omitted), [the case law] [n]either . . . requires disclosure of all witnesses [n]or directs the trial court to question veniremen about every possible government witness" (citation omitted)), cert. denied, 513 U.S. 934 (1994), overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000).

c. Witnesses in general. It is appropriate for the court to inquire as to whether any prospective juror "is acquainted with or related to any witness." Baldwin, 607 F.2d at 1297.

e. Bias or prejudice against defendant based upon crime charged. A prospective juror's bias concerning a crime is not grounds for that individual to be excused, so long as the bias is such that "those feelings do not lead to a predisposition toward the prosecution or accused." Lincoln v. Sunn, 807 F.2d 805, 816 (9th Cir. 1987) (quoting United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983)).

f. Bias or prejudice based upon race. "[A]bsent some indication prejudice is likely to arise, or that the trial will have racial overtones," the district court is not required to inquire about racial prejudice. United States v. Rosales- Lopez, 617 F.2d 1349, 1354 (9th Cir. 1980), aff'd, 451 U.S. 182 (1981). See also United States v. Sarkisian, 197 F.3d 966, 979 (9th Cir. 1999) ("[e]ven assuming there was a reasonable possibility that racial or ethnic prejudice might have influenced the jury, the district court's questions regarding the defendants' ethnicity, the use of interpreters, and the jurors' abilities to serve impartially, were all reasonably sufficient to test the jury for bias and partiality" (citation omitted)), cert. denied, 530 U.S. 1220 (2000).

g. Willingness to follow law. Where it appears that a prospective juror disagrees with the applicable law, the court should inquire as to whether the juror is nevertheless willing to follow the law. See United States v. Padilla- Mendoza, 157 F.3d 730, 733 (9th Cir. 1998), cert. denied, 525 U.S. 1166 (1999).

h. Supplemental questions. "It is wholly within the judge's discretion to reject supplemental questions proposed by counsel if the voir dire is otherwise reasonably sufficient to test the jury for bias or partiality." Paine, 160 F.3d at 564- 65 (quoting United States v. Powell, 932 F.2d 1337, 1340 (9th Cir.)), cert. denied, 502 U.S. 891 (1991).

3. Statements by Prospective Jurors–Risk of Infection of Panel

Caution should be exercised to ensure that the responses of a prospective juror do not infect the panel. A jury panel's exposure to inflammatory statements made by a prospective juror requires, at a minimum, that the trial judge voir dire the entire panel "to determine whether the panel ha[s] in fact been infected." Mach v. Stewart, 137 F.3d 630, 633 (9th Cir. 1998).