Friday, July 18, 2014
The Theodore Wafer trial is scheduled to begin Monday morning with jury selection. Unfortunately for both sides, the judge is going to conduct voir dire. The lawyers will be limited to recommending questions for the judge to ask. This is consistent with the practice in federal courts.
Although I tried lots of federal criminal cases before judges I respected, I was never satisfied with the way the way they conducted voir dire.
Can you think of a reason why you can’t be fair to both sides, is a useless question because with rare exceptions everybody believes they can be fair, regardless of their biases or prejudices. In fact, most people are not aware of their biases and prejudices.
In Washington State courts where I also tried many criminal cases, the lawyers are permitted to conduct voir dire. I would start with a general question, such as, “Do you believe you have any biases or prejudices?” Regardless of the response, I would ask them, “Why?”
My purpose in asking that question was to start a discussion that inevitably led to an increased awareness of the role played by biases and prejudices on perception.
For example, a detective’s wife denied having any biases or prejudices until I asked her if she could imagine a situation where she would not believe a police officer’s testimony that conflicted with a civilian witness’s testimony.
She shook her head and said, “No.”
Have you and your husband ever had a disagreement about an event that both of you witnessed, where your memory differed from his and you were sure you were right and he was wrong?
This question elicited laughter followed by an embarrassed and knowing smile.
“I see what you mean,” she said.
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