Day 5, Jury Selection

How a judge’s voir dire can teach a juror what to say?

In my quest to find an answer I stumbled upon the perfect article written by Robert Kelley Esq. posted in the Florida Jury Selection Blog which is titled “The Role of the Judge”.

Having never witnessed a voir dire and as a first-timer, I found it interesting enough. Even though this is the Casey Anthony trial I’m sure there will be much more exciting bombshells ahead to gasp about, however I think this particular voir dire has had its fair share of controversial moments. We’ve seen the potential blogger who didn’t know a DUI was a crime and who can ever forget the arrival of the potential juror who was also one of the many protesters/possible witness who had an altercation with George Anthony who is the father of the accused.

Not to criticize Pinellas County court because I’m aware they were on short notice but maybe they should’ve checked the witness list before pulling her name from the proverbial hat before they put this person in a room full of potential fair and hopefully impartial jurors.

Putting this aside, I’m still taken aback during Judge Perry’s initial introduction and instructions when welcoming the newest potential juror. There was just something not right in his choice of words and mannerisms that I couldn’t put my finger on until I read Robert Kelley’s article. For instance, I thought I witnessed Judge Perry interjecting while the defense attorney Jose Baez was questioning the possible juror. Now I see my concerns are valid. Also there were a few times I wished the defense would have objected to a few of Judge Perry’s instructions and questions I’m sure this would add a considerable amount of animosity to this already stressful case.

Snipped:

“And a trial judge should rarely, if ever, interject itself into the midst of counsel’s voir dire exam if there is no objection from opposing counsel. As noted by the Fourth District Court of Appeal in Brown, supra, “We feel constrained to add a final observation. It is clear that the trial judge interjected himself into the defense counsel’s voir dire examination of jurors and final argument without any objection from the prosecutor. While it is certainly true that a trial judge has the power to take such action even in the absence of an objection from the opposing lawyer, it should be exceedingly rare to do so.”

Robert Kelley Esq. the article editor went on to say because jurors respond differently to lawyers than to the judge, it is fundamental that the trial judge must allow counsel adequate time to question the panel to ascertain latent or concealed prejudgments by prospective jurors, and to inquire into core areas of the case, even if the court and opposing counsel have already thoroughly inquired into those areas.

Considering that time and Judge Perry’s demanding deadlines are at stake explains the reason why he is interjecting during counsel’s questioning of prospective jurors but is it ethical to do so. This article clearly states it matters not that the court and opposing counsel have already thoroughly inquired into those areas the counsel’s questioning supersedes and he should be allowed to continue his line of questioning.

Snipped:

Judges should always be mindful that voir dire is the first opportunity the attorneys have to establish personal contact with prospective jurors and the only occasion they have to enter into a dialogue with jurors. It has been repeatedly observed that “prospective jurors do not respond in the same manner to inquiry by a judge as they do to questions by counsel,” and that when responding to a question asked by the judge a prospective juror is more likely to provide a response designed to “please the judge” than to be completely candid. See, Campbell, supra, Miller, supra, Mendez, supra. See also, How a Judge’s Voir Dire can Teach a Jury What to Say, Shuy, R., Georgetown University (Discourse and Society, Vol 6, No. 2, 207 – 222, 1995)

I also read that this can frequently result in some underlying tension between the trial judge and trial counsel during jury selection, and many excellent judges have been reversed for becoming overly involved in voir dire and/or limiting the attorneys’ questions of the panel. Interesting.

The coup de gras

And a trial judge should rarely, if ever, interject itself into the midst of counsel’s voir dire exam if there is no objection from opposing counsel. As noted by the Fourth District Court of Appeal in Brown, supra, “We feel constrained to add a final observation. It is clear that the trial judge interjected himself into the defense counsel’s voir dire examination of jurors and final argument without any objection from the prosecutor. While it is certainly true that a trial judge has the power to take such action even in the absence of an objection from the opposing lawyer, it should be exceedingly rare to do so. Repeated interjections without objection can recast the judicial role from impartial adjudicator to an apparent advocate for the party foreswearing objection. The occasion authorizing such judicial action should thus be both singular and intolerably offensive.” Brown at 913. If a judge improperly interjects him or herself into the trial when there are no objections from the other side, it can result in the judge being removed from the case. See, Ramos v. Casey, 35 FLW D2086 (Fla 5th DCA 2010) (holding that trial judge’s sua sponte making evidentiary objections in personal injury case during plaintiff’s case-in-chief was reversible error and required removal of judge) , and Spencer v. State, 615 So. 2d 688 (Fla. 1993) (holding that trial judge’s sua sponteexcusal of jurors for allegedly having low IQ’s was reversible error.)

Is Judge Belvin Perry trying to tell us something?

Quote:

Repeated interjections without objection can recast the judicial role from impartial adjudicator to an apparent advocate for the party foreswearing objection.

~~~~~~~~~~~~~~~~~

Sources:

Written by Robert Kelley Esq.

http://www.juryblog.com/the-role-of-the-judge/

” Can a judge teach a jury what to say” discussion

http://www.juryblog.com/wp-content/uploads/2008/02/s-voir-dire-can-teach-a-jury-what-to-say.pdf

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