Voir Dire: How is the Jury Determined

What is Voir dire?

Criminal defendants are guaranteed the right to have their case heard by an impartial jury as stated in the United States Constitution and the Constitution of the State of Georgia.  Under Georgia’s constitution, the role of judge of the law and the facts is allocated to the jury.  Applying this principle to criminal cases, it is the jury that hears the evidence and decides whether or not the State has proved its case beyond all reasonable doubt.  The selection of a jury is a process that should not be taken lightly.  In the legal profession, it is called voir dire.

Voir dire (pronounced vwahr deer), French for “to speak the truth,” is defined as “a preliminary examination of a prospective juror by a judge or a lawyer to decide whether the prospect is qualified and suitable serve on a jury.”[1]  To illustrate, jury selection is about creating smaller lists from one big list.  The final list—what we call a jury panel—comes to fruition, with the use of voir dire.  Voir dire, in Georgia, begins with a statewide mastery list from The Secretary of State, The Department of Driver Services, and the Department of Public Health.[2]  A smaller list is then created by the Clerk of Court for each trial requesting a jury trial.

Unfortunately, despite contrary belief, each of us, possess personal biases based upon our own individual experiences, education, or training.  This reality should be taken into account during voir dire.  To illustrate, in a murder case, the victim’s aunt may harbor some bias towards the accused, if not the case in its entirety.  The selection of the “correct” juror requires attorneys to ask specific open ended questions about someone’s personal experiences, education, or training and determine whether these things will cause them to be biased towards their client.  To reiterate, voir dire is not about finding a group of citizens who will rule in favor of your client.  Instead, voir dire involves the process of finding which members of society will hear all of the evidence and make an impartial decision on the evidence presented to them.

Voir dire is usually done in two steps—Collective and Individual.[3]  Collective voir dire involves the use of statutorily required questions, followed by general questions from both parties.  There are four goals in this step: (1) to identify jurors for later individual voir dire and those who may have a personal belief that will cause them to be biased; (2) to educate the jury of the case; (3) to commit the jurors to being fair and impartial; and to relate, or in other words, give the prospective jury panel a reason to like and trust you.  From this step, smaller lists are created and some jurors are asked to stay, while others are asked to remain.  The second step is called Individual voir dire.  Here, the judge will be allowed to ask questions first, followed by the complaining party (prosecutor in criminal cases), then the responding party (defense in criminal cases).[4]  During this process, the judge, and the parties, will further examine prospective jurors to determine any further, and the depth of potential biases or prejudices to the case or individual parties.[5]

Prospective jurors are removed—or excused—by what legal professionals refer to as challenges, peremptory and for cause.  Peremptory challenges allow parties to eliminate a prospective juror for virtually any reason.  Peremptory challenges are generally limited in number.  For example, in Georgia, both parties are limited to twelve challenges in felony cases and fifteen in death penalty cases.[6] Challenges for cause, however, require a party to express a specific reason for the excusal of the prospective juror.  There are generally no limitations on the number of challenges for cause a party may use, however, the presiding judge has the final decision, and discretion in deciding whether or not to excuse the prospective juror.  Therefore, with challenges for cause, it is imperative to be verse in supporting authority and case law to support your challenge.

A jury’s power to decide the outcome of any particular case, should not be taken lightly.  It is for this reason, and the reasons stated above, jury selection is one of, if not the most, important step in the American judicial system—especially in criminal cases.  It is imperative that a jury panel provide impartiality and deliver an unbiased verdict.  The process of asking complete strangers about their personal experiences, training, or education in order to decide whether an individual may hold prejudice or bias to your case is not an easy one.  It is a process where attorneys sometimes utilize experts to assist them in, and not one that any defendant—especially a criminal defendant—should go through alone.

[1] Black’s Law Dictionary, 1805 (Bryan A. Garner ed., Deluxe 10 ed. 2014, 2009)

[2] O.C.G.A. § 15-12-40.1

[3] O.C.G.A. § 15-12-133

[4] O.C.G.A. § 15-12-133

[5] Id.

[6] O.C.G.A. § 15-12-165