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10.2 Jury Selection: Instructional Issues

    10.2.1 Reference To Fundamental Principles And Duties Of Court And Jury
    10.2.2 Right To Explain Instructions During Voir Dire To Determine If Prospective Jurors Can Follow It
    10.2.3 Pre-Trial Instruction During Voir Dire: Impact On Jury Instruction Errors At Trial
    10.2.4 Jurors Should Not Be Offended By Probing Questions During Voir Dire
    10.2.5 Clarification Of How To Answer Questions Put To Panel As A Whole
    10.2.6 Admonition Not To Converse During Voir Dire
    10.2.7 Cautionary Instruction Regarding Prospective Juror's Prejudicial Statements On Voir Dire
    10.2.8 Reference To Defendant's Testimonial Rights During Voir Dire As Prejudicial Error
    10.2.9 Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Noncapital Murder Case Does Not Involve The Death Penalty
    10.2.10 Voir Dire: Prospective Jurors Must Be Truthful Regarding Racial Bias
    10.2.11 Voir Dire: Recitation Of The Pledge Of Allegiance

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RATIONALE: Jurors must understand their fundamental role in the judicial process. Without proper instruction, jurors may unknowingly reduce the prosecution’s burden of proof or form preconceived conclusions about the defendant.

POINTS AND AUTHORITIES: It has been recognized that during jury selection, the court should offer at least minimal guidance on the issues of presumption of innocence, burden of proof, functions of Court and jury, and that charges are not evidence of guilt. (See e.g., IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI 001, comment [Opening Comments And Voir Dire (Struck Jury)] (Idaho Law Foundation, Inc., 1995).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.2; 2.1].

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

    I will instruct you that the defendant is presumed innocent and that this presumption continues unless and until during your deliberations you find [him] [her] guilty beyond a reasonable doubt.  The prosecution has the burden of presenting the evidence that establishes guilt beyond a reasonable doubt. The/Each defendant must be found not guilty unless the State produces evidence which proves beyond a reasonable doubt of each element of the crime. If selected as a juror, will each of you presume the defendant innocent unless proven guilty beyond a reasonable doubt?

[See generally In re Winship (1970) 397 US 358 [90 SCt 1068; 25 LEd2d 368]; Sullivan v. Louisiana (1993) 508 US 275, 281-82 [113 SCt 2078; 124 LEd2d 182]; cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 1-5 [Examination by the court] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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RATIONALE: Without adequate inquiry jurors may be selected who are unwilling or unable to follow instructions which are the focus of the defense theory of the case.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.2].

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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APPELLATE PRACTICE NOTE: The instruction of jurors during voir dire may be insufficient to cure the prejudice of failing to give the instruction during trial. People v. Crawford (CA 1997) 58 CA4th 815, 823 [68 CR2d 546] noted that such instructions are "given not to actual jurors, but to prospective jurors who at the time did not know whether they would ultimately serve in the case. As a result, the members of the panel could well have viewed the court's remarks as hypothetical and thus have failed to give the instruction the same focused attention they would have had they been impaneled and sworn." (Crawford, 58 CA4th at 1222; see also People v. Elguera (CA 1992) 8 CA4th 1214, 1222 [10 CR2d 910].)

    Accordingly, Crawford held that the giving of the reasonable doubt instruction during voir dire did not cure the prejudice from failing to give the reasonable doubt instruction during trial. (See also People v. Vann (CA 1974) 12 C3d 220, 226-27 [115 CR 352] [omission of reasonable doubt instruction not cured by instruction that inferences from circumstantial evidence must be proved beyond a reasonable doubt]; People v. Elguera, 8 CA4th at 1222-23 [same].)

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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RATIONALE: Jurors who are asked "offending" questions may acquire negative or defensive attitudes resulting in incomplete or even untruthful responses to the questions.

POINTS AND AUTHORITIES: It is well settled that counsel may probe potential jurors to determine preconceived prejudices that may affect the case. (See State v. Neal (MO 1979) 591 SW2d 178, 181; see also State v. McMillin, 783 SW2d 82, 91 [death qualification voir dire necessarily requires deep probing as to opinions held].) However, It is imperative that the jury understand that this information is necessary to satisfy the Constitutional mandate of a trial by a fair and impartial jury. Accordingly, an instruction informing the jury of the importance and necessity of such questions may be appropriate. (See U.S. v. Haldeman (DC 1976) 559 F2d 31, 179; see e.g., MICHIGAN CRIMINAL JURY INSTRUCTIONS 1.2, ¶ 3 [Selection Of Fair And Impartial Jury] (ICLE, 2nd ed. 1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

PRACTICE NOTE: If counsel conducts the voir dire it may be even more important for the judge to preface the questioning with such an instruction. Otherwise, probing questions by defense counsel may create resentment by the jurors against the defendant.

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See also Benchbook For U.S. District Court Judges [2.06.1 Standard Voir Dire Questions-Criminal: Outline].

See also Benchbook For U.S. District Court Judges [2.06.2 Standard Voir Dire Questions-Criminal: Other Sources].

See also Benchbook For U.S. District Court Judges [2.07 Preliminary Jury Instructions In Criminal Case].

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RATIONALE: Without instruction the prospective jurors may not understand that raising or not raising their hands in response to a group of questions is considered to be an answer to the question.

POINTS AND AUTHORITIES: Defendant is entitled to a trial by a fair and impartial jury. Unclear or incorrect responses due to lack of understanding of procedure may taint the venire. Prospective jurors should therefore understand the correct way to respond to the questions propounded. An instruction informing them of how or in what manner to answer a question may be appropriate. For example, counsel may wish jurors to respond affirmatively to a question(s) by raising their hands or standing up. (Alexander, MAINE JURY INSTRUCTIONS MANUAL 2.9 [Instruction 3-Initial Caution To Jury Panel, Before Questioning] (Lexis, 1999).)  A failure to respond in this fashion is then implying that they have no information to give or that the question does not apply to them personally. Furthermore, juror understanding of the ramifications or their answers will serve to dispel confusion and help to protect the rights of defendant.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

    Q.    Correct? And let me illustrate here. Counsel and I are taking that [juror not raising hand] to mean, of course, what you're saying best of your knowledge you're not acquainted with anyone we've introduced. Is that fair?

    A.    Right.

    Q.    Is that fair? Now the reason I want to illustrate this at this point, ladies and gentlemen, the rest of you, of course, did not raise a hand either, so of course, counsel and I are taking that to mean that for each of you your answer to that question, kept your hands down, so basically, each of you were answering the question and each of you are understood to be saying that to the best of your own knowledge you're not acquainted with any of the people at counsel table.

    In other words, you gave a very specific answer to that question. Do you understand that? Okay.

    Q.    As we go along here this morning and throughout this questioning process, in order to save time I'm probably going to ask quite a few questions that way: Please raise Your hand if you know someone or if your husband works in the Sheriff's Department, there will be a whole realm of questions I'll be asking jurors to respond by raising a-hand to -- in regard to the question if it applies to you.

    In other words, you don't have to raise your hand if it doesn't apply to you. When you don't raise your hand counsel and I are taking that to be saying, in effect, Judge, you know, I don't have the information or that question doesn't apply to me. So you, in effect, just like in this question are giving us an answer, that is, like Mr. Smith [prospective juror] said and Miss Jones [prospective juror] said, each of them are not acquainted with these people. So keep that in mind.

    All of you took an oath here to give us accurate information, so it is important for us to establish at this point that all of you understand that you don't raise your hand when you should, then of course, you're misleading us because I won't follow-up with the additional question and we won't find out what information you've had that you should be disclosing.

    And, of course, if you fail to raise your hand and we don't get the accurate information, who knows but at some point it may become very important in terms of the integrity of our, you know, jury selection process in the sense that we're not getting accurate information from you or number of jurors. And that, of course, has, of course, tremendous impact and complications for later on. Keep that in mind.

    Now the reason I use this method, of course, is rather than asking all 20 of you, you know, do you know [the prosecutor] and then coming back around and asking all 20 of you do you know [defense counsel] and going through all five people, obviously, that takes a lot more time than asking the question the way I did. So, obviously, it is a time factor that we're dealing with.

    On the other hand, of course, we want you to keep in mind you've taken an oath to give us accurate information about your qualities and qualifications to serve as Jurors. So we want to make sure we are getting accurate information.

[Source: People v. Williams (Kern County [California] Superior Court No. 63546A and B.]

    If your answer to the question is no, simply remain seated and do nothing. If your answer to the question is yes, raise your hand or stand up. I will then make further inquiry if necessary.

[Source: NCJIC.]

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RATIONALE: Without proper admonition, prospective jurors may discuss the case among themselves or with others before being selected.

POINTS AND AUTHORITIES: It is common practice to admonish the jurors before adjournment not to speak amongst themselves or with anyone else about the case. (See NCJIC 16.2.3.1 [Duty Not To Discuss Case With Other Jurors Prior To Deliberation].) Some jurisdictions, such as California, require such an admonition after the jury is sworn in. (See People v. Horton (CA 1995) 11 C4th 1068, 1094 [47 CR2d 516].) However, the possibility of prejudice exists even during voir dire when prospective jurors may discuss the case among themselves. Therefore, an admonishment during or at the beginning of voir dire "constitutes a sound judicial practice." (Ibid; see also State v. Simpson (RI 1991) 595 A2d 803, 806 [court approved of the giving of a preliminary admonition when addressing the venire of jurors].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.5; 7.5].

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

    As a prospective juror you must remain free as possible from the influence of others. Therefore you are not to converse among yourselves or with anyone else about the case at any time.

[Source: NCJIC.]

    As a prospective juror, your obligation to avoid any publicity about this case includes information which might be available from electronic sources such as the internet, e-mail, chat rooms, etc.

[Source: NCJIC.]

    If someone should try to communicate with you using e-mail, internet chat rooms, or any other electronic means, please report it to me immediately.

[Source: Adapted from 1st CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL No. 1.07, No. 3 [Conduct Of The Jury] (1998).]

    Do not make any independent personal investigations into any facts or locations connected with this case. Do not look up any information from any source. Do not communicate any private or special knowledge about any of the facts of this particular case to your fellow prospective jurors. Do not read any news stories or listen to any radio or television reports about this case or about anyone involved in this case.

[See UNIFORM CRIMINAL JURY INSTRUCTIONS (OREGON), UCrJI CM-1002, ¶ 13 [Precautionary Instructions] (Oregon State Bar, 1998).]

    If selected as a juror you will be called upon to decide the facts of the case. Therefore, you must keep an open mind and must not form or state any opinion about the case one way or the other.

[Source: Adapted from 11TH CIRCUIT PATTERN JURY INSTRUCTIONS - CRIMINAL 1.1 [Preliminary Instructions Before Opening Statements (Short Form).] (1997).]

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RATIONALE: Unless properly admonished jurors may be influenced by prejudicial statements they heard from other prospective jurors on voir dire.

POINTS AND AUTHORITIES: Jurors selected to hear the trial may be influenced by statements made by a potential juror during voir dire. (See e.g., Mach v. Stewart (9th Cir. 1998) 137 F3d 630, 633.) Hence, when such a statement is made during voir dire an instruction to disregard the statement or a motion to quash the jury panel may be appropriate. (Cohen v. Rains (TX 1989) 769 SW2d 380, 384; see also Stripling v. State (GA 1991) 401 SE2d 500, 506 [court cured potential harm by conceding impropriety of remark, apologizing for making it, and telling prospective jurors not to let it influence them]; Lingerfelt v. State (GA 1978) 249 SE2d 100, 103 [defendant’s motion for mistrial granted following prejudicial statements of prospective juror on voir dire]; see also Young v. State (TX 2002) 73 SW3d 482, 486-88 [trial court's colloquy with venirewoman placed information before the venire that the State itself could not have gotten into evidence, i.e., expert opinion testimony that child witnesses in sexual assault cases always tell the truth.  "This case vividly illustrates the dangers of questioning individual veniremembers about sensitive or explosive topics in front of an entire venire panel - a practice we strongly discourage. If the trial court felt that further clarification was necessary after the venirewoman said she had worked with "a lot of sexually abused children," and "I just don't think I can be fair," the trial court should have brought her to the bench for further questioning outside the panel's presence. This simple precaution would have precluded the necessity of a mistrial, and thus another trial."].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 5.5; 7.5].

Voir Dire: Avoiding Tainting The Jury Panel. Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 1:14.

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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PRACTICE NOTE: The defendant has the right to decide whether the jury will be given a cautionary instruction at trial regarding the right of the defendant not to testify. (See e.g., Russell v. State (AR 1966) 398 SW2d 213, 215) This rule prohibiting any instruction regarding the defendant’s failure to testify at trial absent a request by the defense (see NCJIC  18.3.4 [Waiver Of Instruction Regarding The Defendant's Failure To Testify To Avoid Prejudicially Highlighting The Matter]), also applies to instructions given during the voir dire. (See People v. Koberstein (NY 1985) 489 NE2d 1281, 1282; Leventhal, CHARGES TO THE JURY AND REQUESTS TO CHARGE IN A CRIMINAL CASE (NEW YORK) 6:09 [Witnesses – Defendant As Interested Party – Commentary] (West, 1999).)  Even if the defense questions a prospective juror about his or her reaction if the defendant chooses not to testify, the court should still not discuss the privilege against self-incrimination unless requested to do so by the defense. (Ibid.) The court should only instruct the jury that it is bound by the law upon which the court will instruct the jury and determine whether the prospective juror can follow the instructions as given. (Ibid.)

    Accordingly, it is error for the judge to refer to the defendant’s right to testify or not to testify during the impaneling of the jury and during voir dire. (See Mosby v. State (AR 1970) 457 SW2d 836, 837-38; State v. Ford (MO 1984) 669 SW2d 69, 69; see also State v. Hightower (NC 1992) 417 SE 237, 240 [error in the trial court’s denial of a challenge for cause to a juror who stated on voir dire that defendant’s failure to testify during trial for murder would "stick in the back of my mind"]; Harris v. State (AR 1976) 543 SW2d 459, 462 [trial court improperly commented on defendant’s failure to testify].)

    See also NCJIC 18.3 [Failure Of Defendant To Testify].

RESEARCH NOTES:

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See 9th Circuit Model Jury Instructions - Criminal 3.4.

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    10.2.9    Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Noncapital Murder Case Does Not Involve The Death Penalty

PRACTICE NOTE: In a noncapital murder trial the jury should not be concerned about the defendant's sentence or punishment. (See generally NCJIC Chapter 279 [Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict]; see also Shannon v. U.S. (1994) 512 US 573 [114 SCt 2419; 129 LEd2d 459].)

    However, in murder cases, some jurors may wonder whether the case involves the death penalty. This issue often becomes a concern at voir dire where the jurors may raise the issue of penalty. Normally, the prosecution and the court will want to inform the jury that the case does not involve the death penalty. From the prosecution’s standpoint, juror knowledge that the case does not involve the death penalty may make a conviction easier to obtain. From the court's point of view, informing the jury that the case does not involve the death penalty will reduce the number of jurors seeking dismissal from jury service and increase the number of potential jurors available to try the case. (See, e.g., State v. Townsend (WA 1999) 979 P2d 453.)

    However, both of these approaches violate the well settled rule that jurors should not consider punishment or sentence. (See Shannon v. U.S, supra; see also People v. Baca (CA 1996) 48 CA4th 1703 [56 CR2d 445]; People v. Nichols (CA 1997) 54 CA4th 21 [62 CR2d 433].)

    Accordingly, defense counsel may wish to oppose any general instruction of the jurors that the case does not involve the death penalty.

    Alternatively, if the jury will be informed that the case does not involve the death penalty, the defense should have the right to inform the jury that it does involve the penalty of life without possibility of parole (in the case of a special circumstance situation). (See Simmons v. South Carolina (1994) 512 US 154 [114 SCt 2187; 129 LEd2d 133] [state, which has raised specter of defendant's future dangerousness, violated defendant's due process rights by refusing to instruct jury that, as alternative to death sentence, sentence of life imprisonment carried with it no possibility of parole]; People v. Smithey (CA 1999) 20 C4th 936, 1008 [86 CR2d 243] ["[T]he prosecutor in the present case urged the jury to return a verdict of death, in part because of the potential that defendant would be dangerous in prison or to society if he escaped. Therefore, under Simmons, defendant was entitled to advise the jury that he was ineligible for parole"].) Moreover, a one-sided admonition that "this is not a death case" would violate the well-settled rule and due process principle that instructions must be balanced and not favor one party over the other. (See NCJIC 300.12 [Unbalanced Instructions].)

NOTE: To avoid broaching the subject of penalty in front of all the jurors during voir dire, a pre-voir dire questionnaire may be utilized. Any jurors who question whether the case involves the death penalty can then be voir dired in chambers to avoid tainting the rest of the jurors.

MOTION AVAILABLE: For a sample motion and points and authorities which were successfully used in a non-capital special circumstance trial, click here. [Motion Bank # M-3002.]

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PRACTICE NOTE:  In California, prospective jurors are required to take an oath to "'accurately and truthfully answer, under penalty of perjury, all questions'" concerning their qualifications and competency to serve as jurors. (Calif. CCP 232(a).) Violation of that oath is perjury, a felony offense. (Calif. PC 118(a), 126; People v. Meza (CA 1987) 188 CA3d 1631, 1646-1647 [234 CR 235].) Absent a statute's constitutional infirmity, a trial court does not have authority to disregard such legislative provisions. (In re Garner (CA 1918) 179 C 409, 411-412 [177 P 162] [disapproved on another ground in In re Lynch (CA1972) 8 C3d 410, 424, fn. 15 [105 CR 217]; see also Johnson v. Superior Court (CA 1958) 50 C2d 693, 696 [329 P2d 5].) And a court cannot authorize, in advance, the violation of a valid criminal statute. (City of Los Angeles v. Superior Court (CA 1959) 51 C2d 423, 430 [333 P2d 745]; Manchel v. County of Los Angeles (CA 1966) 245 CA2d 501, 506 [54 CR 53].) 

   In People v. Mello (CA 2002) 97 CA4th 511 [118 CR2d 523] the defendant was an African American.  During voir dire, the judge noted that almost everyone else in the courtroom was white and made the following statement to one group of venirepersons:

    "Now, a touchy subject. . . . ¶ All right. Here's a sensitive one. The defendant is African American. Okay. Almost everybody in this courtroom is white, Caucasian. ¶ Now, race simply does not -- I don't want any racism in my court, which most of you know by now, but I go a little further than that. ¶ I recognize that most people in today's age don't want to raise their hand and say [']I am a bigot['] or [']I'm a racist[']. So what I'm going to do, if any of you have the slightest doubt that you might not, for racial reasons, be able to give this defendant a fair trial, I'm going to give you permission to lie. ¶ I want you to tell me -- there's plenty of other reasons, which you as intelligent people know that you can dream up, how you will not -- you can get out of sitting here. ¶ Okay. I want you to come up with something so that you can get out of sitting here. I don't want that issue to raise its head in this courtroom. All right. Can everybody assure me of that?"    

(Mello, 2002 Cal. App. LEXIS 3761 at * 4.)  Some jurors were chosen from the panel and a second panel was given a similar instruction.  Defense counsel complained that the instruction violated the defendant's constitutional rights and required a mistrial.  The motion was denied and the defendant was convicted.  The appellate court agreed that the repeated instructions to prospective jurors to lie under oath about racial bias violated the defendant's state and federal constitutional rights to a fair and impartial jury and to due process.  "There is a simple way during voir dire for trial judges to inquire properly into racial bias. They need only follow the Judicial Council's guidelines for such inquiry, which our high court has expressly endorsed. [Citations.]  Section 8.5(b)(18) of the California Standards of Judicial Administration (23 pt. 2 West's Cal. Codes Ann. Rules (1996 ed.) Appen., p. 663 (hereafter Standards)) proposes the following wording: 'It may appear that one or more of the parties, attorneys or witnesses come from a particular national, racial or religious group (or may have a life style different than your own). Would this in any way affect your judgment or the weight and credibility you would give to their testimony?'  ... Our Supreme Court has pointedly observed: "Trial court judges should closely follow the language and formulae for voir dire recommended by the Judicial Council in the Standards to ensure that all appropriate areas of inquiry are covered in an appropriate manner." ( Mello, 2002 Cal. App. LEXIS 3761 at * 10; see also ( People v. Holt (CA 1997) 15 C4th 619, 660, fn. 13, & 661 [63 CR2d 782]; People v. Wilborn (CA 1999) 70 CA4th 339, 346-347 [82 CR2d 583].) 

    In Mello the "misguided directives frustrated the main object of voir dire, to 'ferret[] out bias and prejudice on the part of prospective jurors.'" (Mello, 2002 Cal. App. LEXIS 3761 at * 15.)  Secondly, "the erroneous instructions advised prospective jurors to both conceal and falsify relevant information. This procedure could deprive the parties of information necessary to make informed tactical decisions. For example, information provided by the prospective jurors might lead counsel to conclude that there is good cause for a motion to change venue [citations] or to challenge the venire [citations.].  Such information also is utilized in the exercise of peremptory challenges. [Citation.] And it may convince a defendant of the wisdom of attempting to negotiate a plea, or may influence consideration of the witnesses to be called and the subjects to be addressed or avoided."  (Mello, 2002 Cal. App. LEXIS 3761 at * 15-16.)  "Finally, the instructions to lie during voir dire infected the entire trial process with the unacceptable notion that lying under oath may be appropriate. Once given those instructions, the jurors eventually seated may not have taken with the requisite solemnity their later oath to "'well and truly try the cause now pending before [the] court, and a true verdict render according only to the evidence presented to you and to the instructions of the court.'" [Citation.] For this and other reasons, jurors never should be advised that they can follow or ignore the law as they choose.  [Citation.]  Moreover, the instructions to lie during voir dire could have adversely affected the jurors' subsequent evaluation of the witnesses' sworn testimony. After all, [the judge] advised the jurors that discomfort with telling the truth justifies concealing it, even under oath, in at least one circumstance. In effect, the judge set the wrong tone for the jurors' compliance with all of their important obligations."  (Mello, 2002 Cal. App. LEXIS 3761 at * 16-17.)

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