Maryland Voir Dire Motion

CourtroomMaryland has what some say is the most restrictive voir dire. Skelton voir dire does not help justice and it certainly does not help defendants. Here is a motion we have conducted to conduct more comprehensive voir dire. Some Maryland judges have agreed that we should be allowed to dig deeper into the biases of who might sit on our juries. Ultimately, it is up to the trial judge.

DAVID MCENROE * IN THE
Plaintiff * CIRCUIT COURT
v. * FOR
ADVANCED RADIOLOGY, PA., et al. * HOWARD COUNTY
Defendants * CASE NO. 13-C-17-113087 MM

IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY

Plaintiffs,
v.
Defendants.

* * * * * * * * *

Case No.:

* * * * * * * * *

PLAINTIFF'S BENCH MEMORANDUM CONCERNING VOIR DIRE OF THE JURY ARRAY

Plaintiff submits this Bench Memorandum on the issue of voir dire and suggests that allowing counsel for the parties to conduct the examination of the array, as permitted by Md. Rule 2-512(d), will result in selection of a more qualified and less biased panel of jurors, and in support thereof states as follows:

I. INTRODUCTION

Maryland Rule 2-512(d) grants this Honorable Court the authority to "permit the parties to conduct an examination of qualified jurors" for purposes of "challeng[ing] an individual qualified juror for cause." Attorney conducted voir dire is not only authorized by Rule 2-512(d), but it is also the best way to achieve the core purpose of Maryland's limited voir dire which "is to ensure a fair and impartial jury by determining the existence of cause for disqualification." Washington v. State, 425 Md. 306, 312 (2012). That purpose is best fulfilled through attorney conducted examination because "the weight of the available evidence establishes that attorney-conducted voir dire is better at revealing juror biases."[1] This is due to numerous factors, including jurors' fear of, and desire to please, judges given judges' position as authority figures. This results in jurors concealing their biases and prejudices when being questioned by a judge. Indeed, "[t]he judge's approval is important to a lot of prospective jurors and many will alter their responses or hide certain attitudes in order to be perceived favorably."[2] This is supported by empirical studies. See, e.g., Susan E. Jones, Judge-Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, Law and Hum. Behavior, Vol. 11, No. 2, at 12 (1987) ("subjects change their answers to a significantly greater degree when they were asked to report their attitudes to the judge than when they were asked to report their answers to an attorney.")

The Court of Appeals has "made clear that this Court will prescribe the juror voir dire process as is necessary to uncover disqualifying bias." Dingle v. State, 361 Md. 1, 14 (2000) (emphasis in original). Attorney-conducted voir dire is a necessary step in fulfilling that mandate because it is the most effective means of ferreting out conscious and subconscious juror bias. For all these reasons, as discussed in greater detail below, Plaintiff respectfully requests pursuant to Rule 2-512(d), that Defendant's and Plaintiff's counsel be permitted to conduct voir dire of the array in this matter.

II. DISCUSSION

The core purpose of Maryland's limited voir dire process is unearthing juror bias and other cause for disqualification. In fulfilling that core purpose, "[t]he broad discretion of the trial court and the rigidity of the limited voir dire process are tempered by the importance and preeminence of the right to a fair and impartial jury and the need to ensure that one is impaneled." Dingle v. State, 361 Md. 1, 14 (2000). As discussed below, the evidence reveals that a more qualified and impartial group of individuals will be impaneled as sworn jurors through attorney conducted voir dire. Thus, attorney conducted voir dire will lead to a more just resolution of this matter, with nominal additional expenditures of time to reach that substantially fairer result.

A. Rule 2-512 Explicitly Authorizes Attorney Conducted Voir Dire.

Md. Rule 2-512(d)(1) states that "[t]he trial judge may permit the parties to conduct an examination of qualified jurors or may conduct the examination after considering questions proposed by the parties." Id. (emphasis added). Thus, the only issue before the Court is whether a more qualified and less biased jury will be impaneled through attorney conducted voir dire.

As discussed below, the prevailing literature and empirical evidence proves that attorney conducted voir dire will result in the selection of the most qualified jury panel, and will more successfully flush out jurors that should be disqualified for cause. Stated differently, if attorney conducted voir dire is not permitted, a less qualified and more bias panel of jurors will decide this case, and jurors that should be stricken for cause may find their way into the deliberation room.

B. Attorney Conducted Voir Dire is More Effective at Unearthing Juror Bias Due to the Reciprocity Effect and because Jurors Provide Less Deference to Attorneys, who are Not Perceived as Authority Figures, and as a Result Provide More Honest Answers to Attorneys.

It is scientifically proven that individuals disclose more to people from whom they receive moderate self-disclosure. The level of self-disclosure an individual will make depends on whether the individual first receives self-disclosure from the interviewer. This well-established psychology principle is known as the reciprocity effect, and is supported by mountains of empirical research and literature on self-disclosure.[3]

It is equally well established that individuals disclose less information to persons whom they perceive as authority figures, such as judges. This results from the fear that disclosure to an authority figure entails considerable risk and potential reprimand, and so individuals self-disclose to those who have no capacity to punish them for that disclosure. In a recent article, the Honorable Judge Dennis J. Curran stated "[a]n individual called upon to disclose to a person in a more powerful position tends to be less honest because he or she perceives, rightly or wrongly, considerable risk in doing so." Ex. 1, Hon. Dennis J. Curran, Attorney-Directed Voir Dire Comes to Massachusetts: The Republic is Safe, 22 Suffolk J. of Trial & App. Advoc. 1, 7 (2016). This principle, which is grounded on the issue of status similarity, is also documented in decades of empirical research and literature.[4]

In one of the largest studies of voir dire, which was funded by the U.S. Department of Justice, research confirmed that the reciprocity effect has a clear and significant impact on the voir dire process. In light of this finding, the DOJ study concluded that attorney conducted voir dire is much more effective in identifying juror bias than judge conducted voir dire.[5]

In that DOJ study, before participating in a mock trial, cohorts completed a questionnaire that measured their attitudes on issues such as treatment of minorities, sociological issues, abortion, legalization of marijuana, and attitudes toward deterrence.[6] Cohorts then participated in multiple voir dire sessions in a courtroom conducted by judges and attorneys under conditions which mimicked a functioning courtroom during voir dire.

The results of this exercise in the DOJ study conclusively showed that "[s]ubjects changed their answers almost twice as much when questioned by a judge as they did when interviewed by an attorney."[7] The study explained that "subjects were considerably more candid in disclosing their attitudes and beliefs about a large number of potentially important topics during an attorney-conducted voir dire."[8] Most notably, "in none of the cases were judges more effective than attorneys" in flushing out the jurors' prejudices that were recorded in the pre-trial questionnaire.[9]

The DOJ study explained very clearly why attorney conducted voir dire was more effective at revealing juror bias: "during a judge conducted voir dire jurors attempted to report not what they truly thought or felt about an issue, but instead what they believed the judge wanted to hear."[10] Based on analysis and comparison of the questionnaire scores and subscales, it was also apparent that "the role status of the target alone is a compelling influence on juror candor in the courtroom."[11] In other words, the role of the judge as an authority figure negatively impacted the judge's ability to garner honest responses and flush out juror bias and prejudice.

The DOJ study attempted to negate the negative impact of status dissimilarity between the judges and jurors by having the judges utilize interpersonal behaviors found to facilitate self-disclosure.[12] Despite that effort, the data showed "that interpersonal style does not make a difference for judges in facilitating self-disclosure."[13] The data further revealed that "the judge's role as an authority figure outweighs any influence that interpersonal style might have. A warm, friendly judge is just as much a judge as a cool, aloof judge, and apparently role-identity remains salient in the minds of jurors."[14]

The DOJ study is not alone in concluding that attorney conducted voir dire is more effective. See, e.g., Hans & Jehle, supra at 1196 ("[t]he judge's approval is important to a lot of prospective jurors and many will alter their responses or hide certain attitudes in order to be perceived favorably"); Jurywork Systematic Techniques § 2:10 (2016) ("[a]ttorney participation in the questioning lessens the social distance between questioner and respondents, thus minimizing evaluation apprehension and minimizing the prospective jurors' tendency to try to please the interviewer"). The American Bar Association Project Standards for Trial by Jury, §§ 2.4 and 5.1, also acknowledges the effectiveness of attorney conducted voir dire and calls for an opportunity for attorneys to conduct direct questioning of jurors in certain cases.

The combined negative impacts of status dissimilarity and reciprocity effect suggest that allowing attorneys to conduct voir dire will always be a more effective method of identifying true biases and prejudices in prospective jurors. For the reasons discussed above jurors are naturally inclined to conceal these biases and prejudices when responding to a judges. Therefore, excluding counsel from the voir dire process will necessarily result in unjust and discriminatory verdicts that both defendants and plaintiffs will find unsatisfactory. The core purpose of Maryland's limited voir dire process is to effectively identify and remove prospective jurors who will not be able to impartially follow the court's instructions. Dingle 361 Md. at 14. It is very clear that this purpose is more fully accomplished by allowing attorneys to meaningfully participate in voir dire.

Allowing attorney participation in the voir dire process ultimately results in a fairer and more effective trial because the attorneys have a better understanding of each particular case and are therefore uniquely qualified to question potential jurors as to relevant biases. See Mckeen, supra at 30-31. The Fifth Circuit Court of Appeals has specifically noted that "[a] judge cannot have the same grasp of facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case." United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977). Because of their in-depth knowledge of a case, attorneys are uniquely able to formulate and ask jurors important follow-up questions which can uncover juror bias more effectively than more generalized questions from the bench. See Hans & Jehle, supra at 1196-97.

Thus, the goals of voir dire are best served through attorney conducted voir dire which will consistently result in a better, less prejudiced group of jurors. The Court of Appeals has "made clear that this Court will prescribe the juror voir dire process as is necessary to uncover disqualifying bias." Dingle 361 Md. at 14 (emphasis in original) (internal markings omitted). Plaintiff submits respectfully that allowing attorney conducted voir dire under Rule 2-512(d) is necessary and appropriate in this case, and requests that this Honorable Court permit counsel for the Defendant and Plaintiff to conduct voir dire of the array in this matter.

C. Attorney Conducted Voir Dire of the Array will Not Unduly Prolong the Voir Dire Process and May Extend the Process by Approximately half an hour.

Recent empirical evidence shows that allowing attorney participation will not unduly prolong the voir dire process. In a comprehensive survey published by The National Center for State Courts and the State Justice Institute it was estimated that allowing attorneys to conduct a 12 juror voir dire process would only add average of 25 minutes. See Hon. Gregory E. Mize, The State-of-the-States Survey of Jury Improvement Efforts: A Compendium Report, p. 30 (NCSC 2007). Of course, in Maryland a civil jury only consists of six jurors so allowing voir dire to be conducted predominantly by the attorneys would presumably add less than the 25 minutes estimated by the NCSC study.

The conclusions of the NCSC study are corroborated by a similar study conducted by the Los Angeles Superior Court in 1970. See Levitt, et al., Expediting Voir Dire: An Empirical Study, 44 S. Cal. L. Rev. 916 (1971). The L.A. study experimented with empaneling jurors utilizing three methods: (a) judge conducted voir dire; (b) attorney conducted voir dire with participation by the judge; (c) attorney conducted voir dire out of the judge's presence. Average voir dire times were 64 minutes for method a (exclusively judge conducted voir dire), 111 minutes for method b (attorney conducted voir dire with judge participation), and 135 minutes for method c (exclusively attorney conducted voir dire). Id. at 935 and 948. This study suggests that voir dire conducted predominantly by the attorneys will take approximately 45 minutes longer than voir dire conducted exclusively by the judge.

The above research and empirical data establishes that attorney conducted voir dire will extend the voir dire process by approximately half an hour or less. In any event, mere economy of time with respect to such nominal additional time expenditures would be an insufficient consideration upon which to risk the seating of more biased jurors. If extending the voir dire process by this nominal amount of time will result in a fairer trial for the Defendant and Plaintiff, it is respectfully submitted that doing so would best serve the interests of justice and help secure the resulting verdict from subsequent challenges and appeals related to the selection of particular jurors that should have been stricken for cause.

D. The Court of Appeals has recently highlighted the importance of conducting voir dire in a more effective method.

In the recent case of Collins v. State 452 Md. 614 (2017), the Court of Appeals emphasized the importance of conducting the voir dire process in a more effective manner.[15] The opinion in Collins explains that although trial judges have wide discretion in voir dire they also have a constitutional "responsibility" to remove potential jurors that cannot be impartial in following the court's instructions. The end of the Collins opinion includes a "Note on Best Practices" offering guidance on the conduct of voir dire. This section discusses the importance of encouraging full and open disclosure from potential jurors during voir dire questioning:

[r]esearch has produced concerning findings regarding the voir dire process. Those findings support the adoption of procedures that encourage disclosure to the greatest extent possible.

Id. at 629. The Court's Note on Best Practices goes on to specifically recommend many of the procedures outlined in the Model Jury Selection Questions for Criminal Trials published by the MSBA's Special Committee on Voir Dire. Id. at 630.[16]

The opinion in Collins is clearly a signal from the Court of Appeals that trial judges may need to consider more effective methods of conducting voir dire. In the civil context, allowing attorney participation under Rule 2-512(d) will clearly enhance and improve voir dire because it is a more effective method of uncovering bias in potential jurors. Attorney conducted voir dire is therefore consistent with the directive announced by the Court of Appeals in Collins.

III. CONCLUSION

For the foregoing reasons, Plaintiff submits respectfully that a more qualified and less biased panel of jurors will decide this case if counsel for the Defendant and Plaintiff conduct the examination of the array.

__________________________
Laura G. Zois

1 South Street, Suite 2450
Baltimore, Maryland 21202
Phone: 410-553-6000
FAX: 410-760-8922
Attorneys for Plaintiff


[1] Brian J. McKeen & Phillip B. Toutant, The Case for Attorney Conducted Voir Dire, Mich. B.J., November 2011, at 30, 31.

[2] Valerie P. Hans & Alayna Jehle, Avoid Bald Men and People with Green Socks? Other Ways to Improve the Voir Dire Process in Jury Selection, 78 Chi. Kent L. Rev. 1179, 1196 (2003).

[3] Gordon J. Chelune, Self-disclosure: Origins, Patterns, and Implications of Openness in Interpersonal Relationships (1979); R.L. Archer, Role of Personality and the Social Situation (1979); H.J. Erhlich & D. B. Graeven, Reciprocal Self-Disclosure in a Dyad, Journal of Experimental Social Psyc., Vol. 7, 389-400 (1971); S.M. Jourard, The Effects of Experimenters' Self-Disclosure on Subjects' Behavior (1969), C. Speilberger, Current Topics in Community and Clinical Psychology (1969); N.R. Simonson, The Impact of Therapist Disclosure on Patient Disclosure, in Journal of Counseling Psyc., Vol. 23, 3-6 (1976); S.M. Jourard, Self-Disclosure and Other Cathexis, Journal of Abnormal and Social Psyc., Vol. 59, 428-431 (1959); L. D. Goodstein & V. M. Reinecker, Factors Affecting Self-Disclosure: A Literature Review (1974); B. A. Maher, Progress in Experimental Personality Research, 49-77 (1974).

[4] B.A. Maher, supra at 49-77; D. Suggs & B. Sales, Juror Self-Disclosure in the Voir Dire: A Social Science Analysis, 56 Ind. L.J. 245, 245-271 (1981); D. Slobin, et al., Forms of Address and Social Relations in a Business Organization, Journal of Personality and Social Psyc., Vol. 8, 289-293 (1968).

[5] Frank P. Andreano, Voir Dire: New Research Challenges Old Assumptions Research Shows That 1) Judge-Directed Voir Dire Can Be Less Revealing of Juror Prejudice Than Lawyer Questioning and 2) Attitudes Toward Hot-Button Issues Like Tort Reform, 95 Ill. B.J. 474, 475 (2007) (citing and discussing Susan E. Jones, Judge-Versus Attorney-Conducted Voir Dire: An Empirical Investigation of Juror Candor, Law and Human Behavior, Vol. 11, No. 2 (1987).

[6] Jones, supra at 6.

[7] Id. at 13.

[8] Id.

[9] Id.

[10] Id. at 14.

[11] Id. at 15.

[12] Id.

[13] Id.

[14] Id.

[15] The opinion in Collins and its endorsement of the work recently published by the MSBA Special Committee on Voir Dire was highlighted in an article appearing in the Daily Record last year. Ex. - 2 - Heather Cobun, Court of Appeals Recommends MSBA Committee's Work on Voir Dire, Daily Record, May 12, 2017.

[16] Ex - 3 - Maryland State Bar Ass'n Model Jury Questions for Criminal Trials.

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