Who should lead voir dire — judges or attorneys?

Voir dire, the practice of questioning potential jurors to see if they could be impartial, in this country dates to colonial times. In the colonies ruled by England, a judge questioned potential jurors to determine if they would side with the crown.

The practice of attorney-conducted voir dire in civil and criminal cases is directly linked to the colonists’ desire for a new government that did not decide whom to place on juries, said attorney David Harak of The Harak Law Firm in Baltimore.

“Attorney-conducted voir dire is a uniquely American (concept),” Harak said.

“If you go back all the way to original notes on the Seventh Amendment in the Constitutional Convention, attorney-conducted voir dire was such an integral part of what (the founders) believed to be a fair trial process that the original draft to the Seventh Amendment included attorney-conducted voir dire,” Harak said.

The reference was removed from the Bill of Rights because the founders worried that any enumeration of what constituted a fair trial would prove limiting, Harak explained. The founders simply went with the phrase “fair trial.”

An overwhelming majority of states, including Maryland, permit attorney-conducted voir dire. Nevertheless, judge-conducted voir dire continues to prevail in Maryland.

Some attorneys maintain that jurors can be intimidated by a judge, especially when they are asked if a particular issue would keep them from being impartial. Attorneys also say that the questions asked by judges — such as a juror’s name, age, address, profession and profession of their spouse — are not probing enough to ferret out bias.

A judge might also ask prospective jurors if anyone in their family is in a particular field, such as medicine or law. Jurors raise their hands if the question applies to them and, sometimes, judges will allow the attorneys a follow-up question or two. But the lawyers generally don’t talk to every potential juror. In a pool of 40 prospective jurors, perhaps only 25 will have answered questions, Harak said.

“If I don’t get to talk to those 15 other jurors, if they don’t answer any of the questions the judge asks and I know nothing about them, how do I know whether they are biased or not biased?” Harak said.

Michael J. Winkelman, of McCarthy, Winkelman, Mester & Offutt in Mitchelville, said the purpose of voir dire is to get a jury that is totally unbiased.

“The best way to do that is to ask complete and informed questions of potential jurors,” he said. “Our system now doesn’t work that way. Right now our system is at best perfunctory. The questions we ask are perfunctory. The answers, if any, are perfunctory. … All litigants are now left with a jury pool that they effectively know very little about.”

Some critics of attorney-led voir dire say the process would add more time to court proceedings. Winkelman, among other Maryland lawyers, doesn’t buy it.

“If someone can show me facts that show around the rest of the country attorney-led voir dire has crippled the legal system, I’d love to look at those facts,” Winkelman said.

Patrice Meredith Clarke, of Iliff, Meredith, Wildberger & Brennan in Pasadena, said attorneys should recognize that there is a rule permitting attorney-led voir dire in Maryland.

“If we don’t ask the court to let us do the follow-up questions or if we don’t ask the court to let us do the attorney-led voir dire, then we are going to always default to this judge-led voir dire,” she said. “Whether they grant (attorney-led voir dire) or not is up to the judge, but (the rule) is there. I think the more we use it, I think the more common (attorney-led voir dire) could become.”