Primary among the requisite safeguards for a fair and impartial jury is a party’s right to challenge prospective jurors, either peremptorily or for cause.61 The means for making such a determination is through voir dire. Voir dire (“to speak the truth”) is the procedure whereby prospective jurors are questioned in advance of the trial to determine whether there are any reasons why they should be disqualified from sitting as jurors. The purposes of voir dire are (i) to elicit a juror’s want of bias or prejudice and thus secure for the parties a jury able to vote impartially upon the evidence and law as presented at trial, and (ii) to assist litigants in the intelligent exercise of peremptory challenges.62
In order to prevent attorneys from misusing the process by using voir dire to argue the case, to indoctrinate the jury or to seek other undue advantage, with the result that it may take more time to pick the jury than to try the case, voir dire questioning is conducted by the judge, and not by counsel.63 A litigant has no right to have prospective jurors examined by counsel directly,64 although the trial court, in its discretion, may permit counsel to ask additional questions.65 In any event, determinations of juror impartiality are the responsibility of the trial judge who has the opportunity to question the juror, observe his or her demeanor, and evaluate the ability of the juror to render a fair verdict.65.1
The parties are entitled to submit to the judge in writing prior to the commencement of the drawing of the jury potential questions to be asked of jurors during voir dire,66 but a party has no right to require that all its proposed voir dire inquiries be asked by the court.67 The scope of the voir dire examination is left to the sound discretion of the judge, subject to the essential demands of fairness.68 A judge may exclude proposed voir dire questions that go beyond the purpose of voir dire, i.e., beyond what is appropriate to determine bias.69 For example, in civil cases, as jurors are required to reveal on their juror qualification forms any connection they or their friends or members of their family may have with the insurance industry, parties may not insist that jurors also be asked about any connection that they may have with an insurance company during voir dire, as such questions only serve to bring to the jurors’ attention the fact that an insurance company, rather than the defendant, will pay any award.70 In criminal cases, there is no obligation to ask potential jurors about their views relating to the presumption of innocence and the burden of proof,71 or whether they will be able to render a fair and impartial verdict if the defendant exercises his or her right not to testify.71.1
On the other hand, if requested by a party, a judge has an obligation to ask questions designed to ferret out any racial bias.72 Under Delaware’s constitution, a trial judge must question prospective jurors about racial prejudice when: (1) the defendant stands accused of a violent crime; (2) the defendant and victim are members of different racial groups; and (3) the defense attorney specifically requests the trial court to question the jurors during voir dire concerning potential racial prejudice.72.1
It is not improper to ask prospective jurors in a criminal case if they or members of their family have been the victims of a violent crime.73
Where law enforcement agents are apt to be key witnesses, the trial court, particularly if seasonably requested, should ordinarily make inquiry into whether prospective jurors are inclined to have greater faith in the agents’ testimony merely by virtue of their official positions. The failure to do so, however, is not per se prejudicial error.73.1
In criminal cases, it is improper for a court to permit the government to use police witnesses to assist in jury selection. The practice tends to ingratiate the police witnesses in the eyes of the jury, and such apparent association with the convening of the trial court tends to enhance unfairly the credibility of police witnesses and denigrate that of opposing witnesses.74
To reduce the time required for voir dire, basic background information regarding the jury, taken from the answers to the questions in the juror qualification forms, may be made available in writing to each party.75 This information is available on a computer form obtainable from the Prothonotary for a fee. Lawyers may have also conducted their own independent investigation, which may be anything from a few casual questions to persons who may have some knowledge of the proposed jurors to a sophisticated investigation by a firm (employed by lawyers for that purpose) whose business it is to conduct that type of investigation.
Decisions by lawyers as to whether and to what extent to conduct such an investigation are likely to depend on various factors such as the number of cases which the law firm expects to try before juries selected from the particular panel, the nature of the issues to be tried and the amount of money involved in the case or cases to be tried. In this connection it should be noted that lawyers and members or associates of their firms are prohibited from communicating or engaging others to communicate with anyone the lawyers know will be a member of the panel from which the jury will be selected to try the case or to conduct or cause to be conducted a vexatious or harassing investigation of such person.76
If it is discovered that a juror deliberately lied during voir dire, that dishonesty is considered to be, in itself, sufficient evidence of bias to require that the defendant be afforded a new trial. In the case of inadvertant non-disclosure or mis-disclosure by a juror during voir dire, to obtain a new trial, the judge must fined that (1) the 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.76.1
When the time comes for the selection of jurors for a particular case or group of cases, a number of jurors are selected randomly and summoned and gathered in one of the courtrooms. In the usual case, voir dire is done collectively.77 The Prothonotary, in the presence of the judge, jury and the lawyers, reads to the jury panel a series of questions. The Prothonotary describes the nature of the claims or the offense charged and the estimated length of the trial. The jurors are told the names of the parties, the lawyers and the witnesses in the case and are asked if they know any of them. They are asked if they know anything about the case through personal knowledge, the news media, conversations with third parties or any other source. They are also asked if they have any bias or prejudice for or against any of the parties or if there is some other reason why they cannot give the case their undivided attention and render a fair and impartial verdict. Other questions may be directed to the jurors if counsel have requested them in advance and the judge approves. The jurors are then instructed that if their answer to any of these questions is yes, or if they cannot serve the estimated length of the trial, they are to come forward.
The Prothonotary takes the name of each responding juror and directs each juror, one at a time, to the bench where the judge and counsel are present. The juror explains his or her answers outside the hearing of the other jurors. If the juror’s comments indicate automatic disqualification, the judge excuses the juror from the case, and the juror returns to the pool to be available for other cases. If the juror’s comments leave some doubt, further questioning may ensue to determine whether the juror will be free from disqualifying bias. The court may exclude persons from jury service only upon a finding that such persons would be unable to render impartial jury service or would be likely to disrupt or otherwise adversely affect the proceedings.78 If there is any doubt, the juror will be excused from the case. The judge may ask counsel for their positions as to a given juror’s ability to serve.
Counsel for a party may seek to have a prospective juror excused for cause. A challenge for cause is an objection to the qualification of a proposed juror to sit in a trial for some specific reason. The right to challenge a prospective juror for cause is one of the primary safeguards to ensure an impartial jury.78.1 Any party may challenge a juror for cause.79 The trial court has broad discretion in determining whether a prospective juror should be excused for cause, such discretion being limited by the essential demands of fairness.80
A prospective juror may be excused upon a challenge for cause where the prospective juror sat in a previous trial in the same matter that resulted in a mistrial or was reversed on appeal, or where the juror has an interest in the outcome of the litigation.81 The mere fact that a juror is a casual acquaintance of a witness is not a basis for automatic disqualification.82 If there is to be expert medical testimony, a prospective juror may be subject to being excused if the prospective juror or a member of his or her immediate family has ever been treated by any of the testifying physicians.83
A juror will be excused for cause automatically if that juror is related to or has been represented by counsel for one of the parties or a member of such counsel’s law firm.84 Similarly, a juror who is related to a party will be automatically excused for cause.85 In criminal cases, this includes kinship to the victim.86
A per se rule of disqualification excludes from civil cases any person who owns stock in a corporation that is a party to an action for relief or damages against that corporation.87
A person otherwise competent to serve on a jury is not per se disqualified from sitting merely because of religious beliefs or associations.88 A juror, however, may be subject to disqualification based on religious beliefs or associations under circumstances where (i) religious beliefs are involved as an issue in the case, (ii) a religious organization is a party to the litigation, or (iii) special circumstances raise the possibility of religious prejudice.89 A juror who has a law enforcement affiliation is not per se disqualified, provided that the juror indicates an ability to be impartial.90
After all issues regarding excusals or challenges for cause have been decided, the Prothonotary reads aloud the names of twelve prospective jurors in order from a computer-generated random list.90.1 The named jurors take their places in the jury box in the order they were called.91
61. Jackson v. State, 374 A.2d 1, 2 (Del. 1977).
62. Diaz v. State, 743 A.2d 1166, 1176 (Del. 1999); Dawson v. State, 581 A.2d 1078, 1090 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992); Collingwood v. State, 594 A.2d 502, 504 (Del. 1991); Riley v. State, 585 A.2d 719, 725 (Del. 1990), cert. denied, 501 U.S. 1223 (1991); Feddiman v. State, 558 A.2d 278, 282 (Del. 1989); Dc Shields v. State, 534 A.2d 630, 634 (Del. 1987), cert. denied, 486 U.S. 1017 (1988); Hughes v. State, 490 A.2d 1034, 1041, 1044 (Del. 1985); Riley v. State, 496 A.2d 997, 1004 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Whalen v. State, 492 A.2d 552, 559 (Del. 1985); Bailey v. State, 490 A.2d 158, 164 (Del. 1983), cert. denied, 464 U.S. 867 (1983); McBride v. State, 477 A.2d 174, 190-91 (Del. 1984); Dutton v. State, 452 A.2d 127, 137 (Del. 1982); Gray v. State, 441 A.2d 209, 219 (Del. 1981); Harris Enterprises, Inc. v. State, 408 A.2d 284, 285 (Del. 1979); Young v. State, 407 A.2d 517, 520 (Del. 1979), cert. denied, 446 U.S. 940 (1980); Jacobs v. State, 358 A.2d 725, 728 (Del. 1976); Matthews v. State, 276 A.2d 265, 266 (Del. 1971); Parson v. State, 275 A.2d 777, 780-81 (Del. 1971); State v. McKay, 382 A.2d 260, 261 (Del. Super. 1978).
63. Parson v. State, 275 A.2d 777, 783 (Del. 1971). See also Skinner v. State, 575 A.2d 1108, 1126 (Del. 1990); Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968); Super. Ct. Civ. R. 47(a); Super. Ct. Cr. R. 24(a).
64. Preston v. State, 306 A.2d 712, 716 (Del. 1973).
65. See Super. Ct. Cr. R. 24(a); Wei v. State, No. 510, 1988, slip op. at 8, Holland, J. (Del. Dec. 20, 1989) (ORDER), disposition reported at 571 A.2d 788 (Del. 1989) (TABLE).
65.1. Sykes v. State, 953 A.2d 261, 273 (Del.), cert. denied, 129 S.Ct. 452 (2008).
66. Parson v. State, 275 A.2d 777, 784 (Del. 1911.); Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968); Super. Ct. Civ. R. 47(a); Super. Ct. Cr. R. 24(a).
67. Riley v. State, 496 A.2d 997, 1006 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Jacobs v. State, 358 A.2d 725, 728 (Del. 1976).
68. Lynch v. State, 588 A.2d 1138, 1140 (Del. 1991); Pinkett v. Brittingham, 567 A.2d 858, 862 (Del. 1989); Feddiman v. State, 558 A.2d 278, 283 (Del. 1989); Hughes v. State, 490 A.2d 1034, 1041 (Del. 1985); Riley v. State, 496 A.2d 997, 1006 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Whalen v. State, 492 A.2d 552, 558 (Del. 1985); McBride v. State, 477 A.2d 174, 191 (Del. 1984); Hooks v. State, 416 .2d 189, 194 (Del. 1980); Wright v. State, 374 A.2d 824, 829 (Del. 1977); Jacobs v. State, 358 A.2d 725, 728 (Del. 1976); Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968); Parson v. State, 275 A.2d 777, 784 (Del. 1971).
69. Ortiz v. State, 869 A.2d 285, 290-93 (Del.), cert. denied 546 U.S. 832 (2005); Dutton v. State, 452 A.2d 127, 136 (Del. 1982); Harris Enterprises, Inc. v. State, 408 A.2d 284, 286 (Del. 1979); Parson v. State, 275 A.2d 777 (Del. 1971); Tyler v. Albert Dworkin, M.D., P.A., 747 A.2d 111, 120 (Del. Super.), aff’d mem., 941 A.2d 1028 (Del. 1999).
70. See Pinkett v. Brittingham, 567 A.2d 858, 862 (Del. 1989); Coe v. Schneider, 424 A.2d 1, 2 (Del. 1980); Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968).
71. McCoy v. State, 361 A.2d 241, 243 (Del. 1976).
71.1. Filmore v. Statem 813 A.2d 1112, 1118 (Del. 2003).
72. Feddiman v. State, 558 A.2d 278, 283 (Del. 1989); Van Arsdall v. State, 486 A.2d 1, 13 (Del. 1984), vacated on other grounds, 475 U.S. 673 (1986); Preston v. State, 306 A.2d 712, 716 (Del. 1973); Matthews v. State, 276 A.2d 265, 266 (Del. 1971).
72.1. Filmore v. State, 813 A.2d 1112, 1117 (Del. 2003).
73. Dawson v. State, 581 A.2d 1078, 1094 n.16 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992); McBride v. State, 477 A.2d 174, 190-91 (Del. 1984); Jacobs v. State, 358 A.2d 725, 728 (Del. 1976).
73.1. Miller v. State, No. 312, 2005, Steele, J. (Del. Mar. 9, 2006), disposition reported at 893 A.2d 937 (Del. 2006).
74. Shields v. State, 374 A.2d 816, 820-21 (Del. 1977), cert. denied, 434 U.S. 893 (1977).
75. Juror Management Order, Standard 7(a).
76. Del. R. Prof. Cond. 3.10.
76.1. Cooke v. State, 97 A.3d 513, 554-55 (Del. 2014).
77. Robertson v. State, 630 A.2d 1084, 1092 (Del. 1993).
78. Petit Jury Plan § 9.
78.1. Banther v. State, 783 A.2d 1287, 1290 (Del. 2001); Diaz v. State, 743 A.2d 1166, 1176 (Del. 1999); Jackson v. State, 374 A.2d 1, 2 (Del. 1977),
79. V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 645 (1906).
80. Collingwood v. State, 594 A.2d 502, 504 (Del. 1991); Dawson v. State, 581 A.2d 1078, 1095 (Del. 1990), vacated on other grounds, remanded, 503 U.S. 159 (1992); Dc Shields v. State, 534 A.2d 630, 634 (Del. 1987), cert. denied, 486 U.S. 1017 (1988); Riley v. State, 496 A.2d 997, 1004 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Hughes v. State, 490 A.2d 1034, 1044 n.l0 (Del. 1985).
81. 10 Del. C. § 4523; V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 646-647 (1906).
82. Morrisey v. State, 620 A.2d 207, 214 (Del. 1993); Skinner v. State, 575 A.2d 1108, 1120 (Del. 1990); Weber v. State, 547 A.2d 948, 954 (Del. 1988); Bailey v. State, 490 A.2d 158, 165 (Del. 1983), cert. denied, 464 U.S. 867 (1983); McDonald v. State, No. 467, 1991, slip op. at 3, Horsey, J. (Del. Sept. 23, 1992) (ORDER), disposition reported at 615 A.2d 531 (Del. 1992) (TABLE); Wing v. State, No. 357, 1986, slip op. at 3-4, Horsey, J. (Del. Oct. 15, 1987) (ORDER), disposition reported at 533 A.2d 1254 (Del. 1987) (TABLE); Elliott v. Earley, C.A. at 3, Stiftel, J. (Del. Super. May 8, 1985).
83. Cf. Acme Markets, Inc. v. Downward, 314 A.2d 171, 172 (Del. 1973).
84. Jackson v. State, 374 A.2d 1, 2-3 (Del. 1977); State v. Turner, 1 Del. Cases 39 (Del. 1796); Wilmington v. Parcel of Land Seibert Assoc., C.A. No. 89C-OC-171, slip op. at 7, Poppiti, J. (Del. Super. Jan. 8, 1992).
85. State v. Williams, 18 A. 949, 950 (Del. O. & T. 1890) (under the common law rule, kinship to the ninth degree of consanguinity is a ground for disqualification); Lessees of Armstrong v. Timmons, 3 Del. 342, 3 Harr. 342, 343 (Del. O. & T. 1841); V.B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware § 649 (1906). The number of degrees of consanguinity is determined by counting the number of generations from one of the kin to the nearest common ancestor by excluding the kin and including the common ancestor, then adding to that number the number of generations from the common ancestor to the other kin, excluding the other ancestor and including the other kin.
86. State v. Williams, 18 A. 949, 950 (Del. O. & T. 1890).
87. In re Asbestos Litig. Ltd. to Carter, 626 A.2d 330, 331-32 (Del. Super. 1992).
88. Riley v. State, 496 A.2d 997, 1006 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Rocker v. State, 240 A.2d 141, 143 (Del. 1968).
89. Riley v. State, 496 A.2d 997, 1006 (Del. 1985), cert. denied, 478 U.S. 1022 (1986).
90. Skinner v. State, 575 A.2d 1108 (Del. 1990); Weber v. State, 547 A.2d 948, 954 (Del. 1988).
90.1. To insure randomness the list is produced and sealed in the Jury Services Office and sent into the courtroom with the bailiff accompanying the jurors. The court clerk in charge of jury selection is the only person in the courtroom with access to the random list. The judge and the attorneys may have access to an alphabetical list of jurors.
91. Gattis v. State, 637 A.2d 808, 814 (Del. 1994). In Gattis, a capital case, the defendant challenged the procedure of selecting jurors in the order in which they arrived at the courthouse instead of the historical practice of drawing their names from a box. The Supreme Court noted that the Act does not prescribe the method of selecting jurors, other than the general statement of policy that jury selection must be random, and that the Plan is silent of the issue. The Supreme Court concluded that this alternative method was not impermissible in the absence of evidence that the procedure resulted in the discriminatory exclusion of a constitutionally cognizable group. Id. at 815. Nonetheless, to avoid potential problems in the future, the Supreme Court instructed the Superior Court to amend the Plan to provide for the specific implementation of the common-law practice or its equivalent. Id. at 817-818. As noted above, the Superior Court has switched from picking names from a box to a computer-generated random list.
© 2014 David L. Finger