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Rules Committee recommends changing jury selection

Questions should allow 'intelligent exercise' of peremptory challenges

Maryland attorneys should be permitted to ask a prospective juror questions designed to elicit answers to help the lawyers decide whether to strike him or her from the jury pool without having to give a reason for the dismissal, the Judiciary’s rules committee recommended to the state’s top court last week.

The Court of Appeals’ adoption of the recommendation would alter current trial practice and put Maryland in line with every state but California, Pennsylvania and Virginia that permits jury-selection, or voir dire, questions intended to help attorneys with the “intelligent exercise of peremptory challenges,” the committee stated.

Under current Maryland practice, lawyers’ questions can serve only to form the basis for striking a prospective juror for a specific reason, a so-called “for cause” challenge. The questions are not currently designed or intended for “peremptory” challenges, in which lawyers need not explain why they struck a prospective juror.

The Court of Appeals has not set a date for when it will vote on the committee’s recommendation.

“The court should join the federal courts and the great majority of state courts and permit voir dire to include relevant inquiries designed to facilitate or guide the intelligent exercise of peremptory challenges, in both civil and criminal cases,” the Standing Committee on Rules of Practice and Procedure stated in its recommendations issued Tuesday. “The process should remain subject to the overall supervision and control by the trial court, exercised in a manner that will permit a fair inquiry but (1) avoid unduly prolonging the voir dire process and inappropriate intrusions on jurors’ privacy or security, and (2) preclude attempts to use the process for inappropriate purposes or in inappropriate ways.”

The high court, however, should hold off on fully implementing a change to “intelligent exercise” until the Maryland State Bar Association’s special committee on voir dire has developed appropriate “form questions or lines of inquiry” and they have been reviewed by the committee, the panel recommended.

“The committee believes that form questions or lines of inquiry, developed by judges and practitioners and with the imprimatur of the MSBA and the rules committee, and possibly the court, can go a long way in providing some uniformity in the process and, coupled with overall court supervision and control, avoiding undesirable ramifications from the extension,” the committee stated.

The Court of Appeals instructed the rules committee to make a recommendation on intelligent exercise in a footnote to the court’s Feb. 21 Pearson v. State decision. In that case, the high court overturned a drug conviction because a judge improperly barred defense counsel from asking would-be jurors if they have ever been a member of a law enforcement agency, even though the prosecution’s case relied heavily on police testimony.

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