COMMENT: Limited Voir Dire: An Inadequate Safeguard of the Constitutional Right to an Impartial Jury


Last term the Supreme Court was indirectly confronted with the specter of juror racial bias and its threat to the constitutional right to an impartial jury.[1] Warger v. Shauers, 135 S. Ct. 521 (2014). While the Court ultimately sidestepped the issue, the Warger decision implied constitutional concerns about exercises of judicial discretion that limit how jurors are examined for racial bias during voir dire. For example, it is not uncommon for judges to assume the role of sole examiner or heavily restrict questioning by attorneys. Judges may also opt to only examine jurors publically and as a panel, rather than individually, or in a manner more solicitous of jurors’ privacy. Social science evidence, however, shows that such limits on voir dire produce an inherently ineffective safeguard against juror bias. To more adequately assure litigants of their constitutional right to an impartial jury, courts should embrace the standard use of case-specific, supplemental juror questionnaires and attorney-directed examinations of jurors about racial bias. These two measures offer effective tools to screen out bias and may provide courts a safe harbor from objections about the constitutionality of their voir dire management.

Voir Dire

I. Warger Implied a Constitutional Right to Effective Voir Dire

In Warger, the main issue concerned the scope of Federal Rule of Evidence 606(b), which makes inadmissible certain kinds of juror testimony about what happens in a jury room “[d]uring an inquiry into the validity of a verdict.”[2] The petitioner Gregory Warger lost a leg when respondent Randy Shauers struck him in a motor vehicle accident.[3] Warger sued Shauers for negligence in Federal District Court and lost.[4] Soon after, however, a whistleblowing juror signed an affidavit attesting to problematic statements made by the jury foreperson during deliberations.[5] These statements included the revelation that her daughter had been at fault in a fatal motor vehicle accident and an expression of concern to other jurors “that if her daughter had been sued, it would have ruined her life.”[6] During voir dire the same foreperson had denied to Warger’s counsel that she would be unable to award relevant damages or that she could not be fair and impartial in this kind of case.[7]

Warger moved for a new trial based on the whistleblower’s affidavit, contending that the foreperson had “lied during voir dire about her impartiality and ability to award damages.”[8] The District Court denied the motion,[9] finding that Rule 606(b) barred the affidavit,[10] and the Eighth Circuit affirmed.[11] The Supreme Court then granted certiorari to determine “whether Rule 606(b) precludes a party seeking a new trial from using one juror’s affidavit of what another juror said in deliberations to demonstrate the other juror’s dishonesty during voir dire.”[12]

One argument pressed by Warger and several amici was that Rule 606(b) should be read as not precluding the use of these juror affidavits in order to avoid serious constitutional questions of due process and the right to an impartial jury.[13] For over two hundred years, the Supreme Court has recognized voir dire as “play[ing] a critical function” in assuring litigants that “[the] right to an impartial jury will be honored.”[14] Therefore, Warger argued, “[v]oir dire can be sufficient only if prospective jurors provide truthful answers. Where they fail to do so, the end result is a violation of the litigant’s right to an impartial jury.” [15] Noting that these constitutional concerns are “only heightened” in “especially common” cases of juror dishonesty about racial bias during voir dire, Warger urged the court to resolve any doubt about the scope of Rule 606(b) by applying the canon of constitutional avoidance in his favor.[16]

The Supreme Court, however, unanimously found Rule 606(b) to be clear in scope—thereby precluding an application of the canon of constitutional avoidance.[17] Ruling against Warger, the Court held that the rule does exclude the kind of juror affidavits at issue.[18] The Court insisted that “despite Rule 606(b)’s removal of one means” to ensure the constitutional right to an impartial jury, the right would remain adequately protected by voir dire, the observations of court and counsel during trial, and the potential use of nonjuror evidence of misconduct.[19] Even when the safeguard of voir dire is foiled by juror dishonesty and the operation of Rule 606(b), as it was for Warger, the Court held that the latter two protections alone can still “adequately assure[]” the right to an impartial jury.[20] But, Justice Sotomayor, writing for the unanimous Court, added one caveat to address racial (and ethnic and religious bias), which had drawn significant attention from the justices during oral arguments:

There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here.[21]

Thus, the Court left open the possibility that Rule 606(b) could yield to evidence of sufficiently extreme bias.[22] How extreme such bias might need to be in order to trigger this concern remains undetermined. Warger and his amici catalogued numerous, disturbing instances of bias revealed during jury deliberations.[23] Even Justice Alito, generally an unsympathetic ear for criminal defendants, had declined, when he sat as a judge on the Third Circuit, to rely on Rule 606(b) in excluding testimony that one juror in a criminal trial had called another a “nigger lover.”[24]

Despite reserving this potential, albeit narrow, safety valve, Warger essentially embraced a strict “black box” approach to jury deliberations and strongly affirmed Rule 606(b)’s basic policy “promoting the finality of verdicts and insulating the jury from outside influence.”[25] The decision therefore logically shifts the onus of safeguarding the right to an impartial jury onto the initial process by which the black-box’s inputs—individual jurors—are examined for bias. By largely foreclosing later reconsideration of what goes into the black box, the Court has raised the constitutional stakes for a vigorous voir dire process to effectively screen out bias in the first place.

This consideration is especially true for the threat of racial (or ethnic and religious) bias. Unlike overt juror misconduct like alcohol or drug abuse,[26] once a jury has been finalized, the judge and attorneys usually have little opportunity to detect racial or ethnic bias during a trial. And the potential for “nonjuror evidence” would be only fortuitous in practice. Neither possibility offers much more than haphazard protection of litigants’ constitutional right to a jury free of racial or ethnic bias.

A recent case in a Maine federal district court illustrates the sheer luck that can be necessary to redeem a litigant’s right to impartiality when voir dire is limited. United States v. Fuentes, No. 2:12-CR-50-DBH, 2013 WL 4483062 (D. Me. Aug. 19, 2013). In Fuentes, only an improbable series of events brought to the district judge’s attention the direct evidence that a juror harbored strong racial prejudice against the Mexican defendants in a criminal case. During trial, one of the jurors casually revealed to an acquaintance at a local bar that he viewed the defendants to be “guilty wetbacks.”[27] The acquaintance later mentioned this incident to his probation officer, who then alerted the presiding judge after a guilty verdict.[28] In an order setting aside the verdict, the trial judge noted how voir dire had been limited in large part to magistrate-conducted, group questioning,[29] which is not an effective way to elicit honest responses.

The complete failure of limited voir dire in Fuentes underscores the unreliability of the safeguards highlighted by Warger—at least for racial, ethnic, and religious bias—and thus their inherent inadequacy when effective voir dire is also lacking. Such random protection is unacceptable, both constitutionally and for the institutional legitimacy of the justice system. To assure litigants’ of their constitutional rights, voir dire must be robust enough to realize effective protections that can reasonably secure the right to an impartial jury.

II. Juror Questionnaires and Attorney-Directed Voir Dire

Unfortunately, the relevant Federal Rules of Civil and Criminal Procedure authorize trial judges to restrict voir dire[30] in ways that social science shows to render it inherently ineffective. And traditionally, the Supreme Court and the federal courts of appeals have been reluctant to interfere in the discretion of trial courts to limit voir dire. This broad grant of discretion should be reined in to ensure that litigants’ constitutional rights are not violated. Failure to provide litigants with a robust voir dire renders the process an unreliable or ineffective probe for racial bias. Limited voir dire will inevitably deny litigants their constitutional rights on a widespread basis, guaranteeing egregious miscarriages of justice.

Scholars, judges, and practitioners have collected an extensive body of evidence that convincingly demonstrates that limited voir dire is an inherently ineffective method to detect juror bias.[31] Empirical studies indicate that “bias largely resides in the attitudes and life experiences” of individuals. [32] Therefore, in order to adequately screen racial bias, “the attitudes, relevant experiences, and potential biases of prospective jurors merit a full examination during voir dire.” [33] The signal defect of limited voir dire is that it frequently “does not facilitate the full disclosure of relevant information,”[34] necessary to detect and screen for bias.[35]

Potential jurors, whether consciously or unconsciously biased, are very likely to be uncomfortable responding to sensitive, embarrassing, or controversial questions on the public record before a large group of their peers, a judge, the lawyers, the parties, and even members of the media.[36] Even a relatively unabashed individual with conscious racial bias may be uncomfortable revealing an often stigmatizing bias in such a rare context of speaking out so publicly. When a judge chooses to conduct the examination of jurors—rather than permitting attorneys to lead questioning—along with the natural intimidation factor, “interviewer bias” often leads jurors to seek queues about the judge’s expectations to provide answers that they think will garner the judge’s approval.[37]

Similarly, jurors will frequently hesitate to volunteer information in response to open-ended questions.[38] General, perfunctory, and even leading questions about bias—“Can you be fair?” or “You’re not racist, are you?”—when addressed to an entire group panel with silence taken as assent, are patently weak tools for revealing bias.[39] As one court has noted, “[i]t is unrealistic to expect that any but the most sensitive and thoughtful jurors (frequently those least likely to be biased) will have the personal insight, candor and openness to raise their hands and declare themselves biased.”[40] Even when jurors do confess to bias, a judge, seeking to avoid the inconvenience of losing a prospective juror, may engage in judicial “rehabilitation” by pressuring jurors to moderate their expressions of bias.[41]

Two methods, which would align the techniques of voir dire with its stated purpose, promise courts and litigants alike reasonable assurance that the right to an impartial jury will be effectively safeguarded. These methods are (1) supplemental, written juror questionnaires and (2) attorney-directed, individual questioning. Scholars have suggested that pretrial questionnaires, tailored to the facts of a case, “may be the most efficient and reliable way to obtain information from prospective jurors.”[42] Moreover, the privacy of questionnaires tends to elicit more forthcoming answers from jurors.[43] Most feel much freer to express their honest thoughts and opinions through a questionnaire than they would in open court.[44] Questionnaires also enable the judge and litigants to “quickly pinpoint the specific areas that require individual follow-up questioning.”[45] Individual questioning may also be conducted by sequestering a prospective juror, thereby respecting the individual’s privacy and increasingly the likelihood of candid responses to personal questions.[46]

Attorney-directed questioning injects voir dire with the familiar benefits of the adversarial system over an inquisitorial one. It also mitigates many of the problems with judge-led, limited voir dire. For example, jurors tend not to feel the same social pressure to please lawyers that they do with judges, so they are more likely to provide lawyers with candid responses and less likely to cooperate with attempts at rehabilitation.[47]

III. The Constitutional and Institutional Stakes Favor Robust Voir Dire

The right to a trial by an impartial jury is a keystone of our justice system, enshrined by the Bill of Rights in three separate amendments. A critical part of this guarantee “is an adequate voir dire to identify unqualified jurors.”[48] The significance of this fundamental right is only heightened where the evil of “racial animus”[49] threatens the jury’s impartiality. Such poisonous bias “implicates not only the constitutional provisions guaranteeing an impartial jury, but also the Fifth and Fourteenth Amendment’s provisions guaranteeing equal protection under the law.”[50]

In light of Warger, courts should ensure that this critical right is adequately protected by providing for the use of jury questionnaires and attorney-directed questioning during voir dire. These methods would provide at least a minimally adequate opportunity for litigants to probe prospective jurors for racial bias. Of course, courts should ideally manage voir dire so as to provide litigants ample opportunity to probe for racial bias, steering well clear of the serious constitutional issues created when voir dire is limited to ineffectual techniques.

While the Supreme Court has been reluctant to curtail lower courts’ discretion to limit voir dire, the Court should not shirk from its duty to protect litigants from racially biased trials and its duty to steward and protect the legitimacy of the justice system. Courts should allow effective voir dire as constitutionally necessary to protect litigants’ rights to an impartial jury trial and equal protection under the law. To echo a former Chief Justice of the Supreme Court: nothing can more surely threaten our justice system than systematically allowing racial prejudice to poison its work.[51]

[1] “The Constitution guarantees both criminal and civil litigants a right to an impartial jury.” Warger v. Shauers, 135 S. Ct. 521, 528 (2014); See also Thiel v. Southern Pacific Co., 328 U.S. 217, 220 (1946) (“The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury.”); Irvin v. Dowd, 366 U.S. 717, 721-22 (1961) (“The right to a trial by an impartial jury lies at the very heart of due process.”); See also U.S. Const. amend. VI. (expressly guaranteeing criminal defendants the right to trial “by an impartial jury”); U.S. Const. amend. VII (ensuring for civil litigants in federal courts the common law right to trial by jury, which has in turn been held to inherently include a right to an impartial jury).

[2] Warger, 135 S. Ct. at 524.

[3] Id.

[4] Id.

[5] Id.

[6] Id. (quotation marks and citation omitted).

[7] Id.

[8] Id.

[9] Warger v. Shauers, No. CIV. 08-5092-JLV, 2012 WL 1252983 (D.S.D. Mar. 28, 2012).

[10] Id. at *9 (finding that none of Rule 606(b)’s exceptions applied to the whistleblowing juror’s affidavit).

[11] Warger v. Shauers, 721 F.3d 606, 608 (8th Cir. 2013).

[12] Warger, 135 S. Ct. at 524.

[13] See Brief for Petitioner at 37-40, Warger v. Shauers, 135 S. Ct. 521 (2014) No. 13-517; Brief of The National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, Warger v. Shauers, 135 S. Ct. 521 (2014) No. 13-517 [hereinafter NACDL Brief]; Brief for Amici Curiae Professors of Law in Support of Petitioner Warger v. Shauers, 135 S. Ct. 521 (2014) No. 13-517.

[14] Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981); See also United States v. Burr, 25 F. Cas. 49, 50 (C.C.D. Va. 1807) (Chief Justice Marshall describing the right to challenge jurors in voir dire as necessary to protect the “fairness and impartiality” of “the trial by jury”); Valerie P. Hans & Neil Vidmar, Judging the Jury 37 (1986) (indicating that express provision in the Constitution guaranteeing voir dire would have been redundant because as James Madison put it: “[voir dire] is incident to the trial by jury, and, therefore, as one is secured, so is the other.”).

[15] Brief for Petitioner, supra note 13, at 14.

[16] Id.

[17] Warger, 135 S. Ct. at 529.

[18] Id. at 525.

[19] Id. at 529.

[20] Id.

[21] Id. at 529 n.3.

[22] Indeed, a circuit split remains about whether juror testimony evidencing egregious racial, ethnic, or religious bias may be admitted despite Rule 606(b). Ashok Chandran, Color in the “Black Box”: Addressing Racism in Juror Deliberations, 5 Colum. J. Race & L. 28 (2015).

[23] One amici brief opens with the following samples of bias expressed by jurors during deliberations in criminal cases:

“Let’s be logical. He’s black and he sees a seventeen year old white girl—I know the type.” Shillcutt v. Gagnon, 827 F.2d 1155, 1156 (7th Cir. 1987) (internal quotation marks omitted). “When Indians get alcohol, they get drunk, and . . . when they get drunk, they get violent.” United States v. Benally, 546 F.3d 1230, 1231 (10th Cir. 2008) (internal quotation marks omitted). “[T]he defendants [were] guilty because they were of Arabic descent.” United States v. Shalhout, 507 F. App’x 201, 203 (3d Cir. 2012) (internal quotation marks omitted). “I guess we’re profiling but they cause all the trouble.” United States v. Villar, 586 F.3d 76, 78 (1st Cir. 2009) (internal quotation marks omitted). “All the niggers should hang.” United States v. Henley, 238 F.3d 1111, 1113 (9th Cir. 2001) (internal quotation marks omitted).

NACDL Brief, supra note 13, at 2.

[24] Williams v. Price, 343 F.3d 223, 225-35 (3d Cir. 2003) (Alito, J.) (internal quotation marks omitted). Justice Alito still excluded the testimony, but only based on separate standards for habeas corpus actions. Id. at 237.

[25] Warger, 135 S. Ct. at 526 (citing McDonald v. Pless, 238 U.S. 264, 267-68 (1915)).

[26] See Tanner v. United States, 483 U.S. 107 (1987).

[27] United States v. Fuentes, No. 2:12-CR-50-DBH, 2013 WL 4483062, at *2 (D. Me. Aug. 19, 2013).

[28] Id. at *1.

[29] Id. at *2.

[30] See Fed. R. Civ. P. 47 (granting trial judges broad discretion over management of prospective juror examinations); Fed. R. Crim. P. 24 (same).

[31] See Rachael A. Ream, Feature, Limited Voir Dire: Why it Fails to Detect Juror Bias, 23 Crim. Just. 22, 25-26 (2009) (compiling research studies and concluding that “[l]imited voir dire, especially group questioning, increases incidence of undetected juror bias.”); See also Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 Chi.-Kent L. Rev. 1179, 1186-90 (2003) (compiling various studies that demonstrate the ineffectiveness of limited voir dire).

[32] Ream, supra note 31, at 23.

[33] Id.

[34] Hans & Jehle, supra note 31, at 1182 (italicization added).

[35] An additional negative consequence of limited voir dire is that it stimulates the reliance of attorneys on racial and demographic stereotypes in the absence of actual information about jurors. Id. at 1190-92.

[36] Ream, supra note 31, at 25.

[37] Id.

[38] Id.

[39] Id. (noting how the “phrasing of questions may be used to influence jurors . . . through interviewer bias,” that “[j]urors may also be uncomfortable offering information when responding to open-ended questions,” and that “general questions that are addressed to panel members may be met with silence, which is often interpreted as a negative response when it merely indicates that jurors are unsure of their responses or unclear as to the question”).

[40] Village of Plainfield v. Nowicki, 854 N.E. 2nd 791, 794 (3rd Dist., 2006).

[41] Robert J. Hirsh et al., Attorney Voir Dire and Arizona’s Jury Reform Package, 32 Ariz. Att’y 24, 31-32 (1996)

[42] Ream, supra note 31, at 26 (citing Hirsh et al., supra note 41, at 29); See also Barbara M.G. Lynn, From the Bench: A Case for Jury Questionnaires, 33 No. 4 Litigation 3 (2007).

[43] Ream, supra note 31, at 25.

[44] Hirsh et al., supra note 41, at 29.

[45] Ream, supra note 31, at 25.

[46] See Lynn, supra note 42, at 3.

[47] Hirsh et al., supra note 41, at 32.

[48] Morgan v. Illinois, 504 U.S. 719, 729 (1992) (Citing Dennis v. United States, 339 U.S. 162, 171-72 (1950) and Morford v. United States, 339 U.S. 258, 259 (1950)).

[49] Georgia v. McCollum, 505 U.S. 42, 58 (1992).

[50] Brief for Petitioner, supra note 13, at 39.

[51] See Aldridge v. United States, 283 U.S. 308, 315 (1931).




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