12 Journal of the Kansas Association for Justice

u criminal law Legal Prescriptions for Diagnosing Bias During Voir Dire in Kansas Criminal Cases By Daniel E. Monnat and Paige A. Nichols

Daniel E. Monnat Television medical dramas often lead court has discretion to limit the scope of Monnat & Spur- up to the “aha!” moment when a doc- of voir dire.5 Regrettably, it does not rier, Chtd., has been tor discovers some surprising aspect of appear that the Kansas appellate courts a practicing crimi- a patient’s history critical to a proper have ever reversed a criminal conviction nal defense lawyer medical diagnosis. The brilliant cur- on grounds that the trial court unfairly for the past 30 years mudgeon Gregory House even goes so limited voir dire.6 in his hometown far as to recruit colleagues to break into Despite the Kansas Supreme Court’s of Wichita, Kan. A patients’ houses to search for clues about unwillingness thus far to find reversible cum laude gradu- a patient’s history. Jury selection is never error in limits on useful questioning, ate of California State University, San quite so dramatic—and it is the litigants’, the Court has nonetheless encouraged Francisco, he received his J.D. from the not the jurors’, future that hangs in the trial courts to give counsel “considerable Creighton University School of Law. balance—but all trial lawyers know that latitude” in examining potential jurors: Dan frequently lectures throughout the extracting a complete juror profile is es- United States and has been listed in The sential to diagnosing juror bias. This ar- A trial court should not be satisfied Best Lawyers In America for more than ticle offers authority for Kansas lawyers in all cases with a one-size-fits-all a decade. He was listed as one of the top to ask the probing questions necessary approach to voir dire. Answers should 100 Super Lawyers for Kansas and to that diagnosis in criminal cases. not necessarily be limited to “stock Missouri for 2006. Monnat is a past Jury selection is the mechanism questions” such as “Have you formed two-term president of the Kansas As- by which courts ensure a criminal an opinion as to the accused’s in- sociation of Criminal Defense Lawyers, a defendant’s Sixth Amendment right to a nocence or guilt?” or “Will you be former member of the Board of Directors 1 of the National Association of Criminal trial “by an impartial jury.” In Kansas, able to determine guilt based only on 2 Defense Lawyers, a member of the KsAJ attorneys conduct voir dire. Allowing the evidence presented?”. . . Answers Board of Governors and Executive Com- attorneys to question potential jurors to such questions do, of course, go to mittee, a graduate of the Gerry Spence promotes juror disclosure; both em- the heart of the inquiry and are given Trial Lawyer’s College, and a Fellow of the pirical research and anecdotal evidence under oath and therefore deserve a American College of Trial Lawyers. suggests that “attorney-conducted voir heavy presumption of correctness. dire, when conducted correctly, leads to Nevertheless, it is conceivable that Paige A. Nichols an atmosphere where prospective jurors prospective jurors with the purest of is a research and are more likely to provide meaningful intentions may, in the heat of the mo- appellate attor- self-disclosure and thus produce a more ment in front of their peers, underes- ney practicing in effective voir dire examination.”3 timate their own bias. Consequently, Lawrence, Kan. She The Kansas statute guiding voir dire ‘[c]onsiderable latitude should be received her J.D. in in criminal cases authorizes the trial allowed counsel in the examination 1993 from North- court to limit counsel’s questioning only of jurors, so that all who have bias or eastern University “if the court believes such examination prejudice, or are otherwise disquali- in Boston and an to be harassment, is causing unneces- fied, may be eliminated.’7 LL.M. in criminal law in 2002 from the sary delay or serves no useful purpose.”4 University of Missouri–Kansas City. It would thus seem error for a court to This latitude is necessary not just so limit any conceivably useful questioning that counsel may develop challenges that does not harass a juror or cause un- for cause, but also so that counsel may necessary delay. And yet, appellate com- make informed peremptory challenges: plaints about voir dire limits have often been rejected on grounds that the trial [T]he right to challenge a given Journal of the Kansas Association for Justice 13

number of jurors without showing or prejudice of a particular prospective in United States v. Johnson, a federal cause is one of the most important juror.”11 Even the United States Supreme district court examined at great length rights to a litigant; any system for the Court has cautioned that “general fair- the question, “What degree of specificity empaneling of a jury that prevents ness and ‘follow the law’ questions” are about the facts of this particular case, or embarrasses the full, unrestricted insufficient to detect challenge-worthy if any, is it permissible to include in exercise of the right of challenge must attitudes among potential jurors.12 questions to prospective jurors?”19 The be condemned; a litigant cannot be Thus, the Kansas Supreme Court court distinguished between case-spe- compelled to make a peremptory has urged that questions incorporating cific questions that merely “attempt to challenge until he has been brought case-specific facts, if properly designed discover a potential juror’s bias based on face to face in the presence of the to ferret out juror bias, “should not be facts that are or are likely to be at issue court, with each proposed juror, and unduly restricted.”13 in this case,”20 and those which “ask an opportunity given for such inspec- at least one appellate court from a juror to speculate or precommit to tion and examination of him as is another jurisdiction has reversed a civil how that juror might vote based on any required for the due administration verdict because of the trial court’s refus- particular facts.”21 of justice; the right to reject jurors al to allow counsel to ask questions that relying on its own experience to by peremptory challenge is material incorporated specific facts of the case. demonstrate “the insufficiency of purely in its tendency to give the parties In Grossman v. Gebarowski,14 an acci- ‘abstract’ questions to determine the assurance of the fairness of a trial dent victim’s estate brought a wrongful ability of jurors to perform their duties,” in a valuable and effective way; the death action against the motorist who the court held that case-specific ques- terms of the statutes with reference to killed the victim. The trial court denied tions were “appropriate—indeed, neces- peremptory challenges are substan- plaintiff’s counsel’s request to ask the sary—to empanel a fair and impartial tial rather than technical; such rules, potential jurors about specific facts of jury in this particular case.”22 The court as aiding to secure an impartial, or the case in order “to identify jurors announced “a sensible rule” under which avoid a partial, jury, are to be fully entertaining a bias against a pedestrian case-specific questions would be evalu- enforced; the voir dire is of service who crosses a street at a place other than ated not by their content, but by their not only to enable the court to pass an intersection or marked crosswalk form: upon a juror’s qualifications, but also and to provide enough information to in assisting counsel in their decision enable plaintiff to use her peremptory Thus, any ‘case-specific’ question as to peremptory challenge.8 challenges.”15 should be prefaced by ‘if the evidence The Illinois Court of Appeals ordered shows,’ or some other reminder that consistent with the language of these a new trial, finding the court’s “general an ultimate determination must be cases, the ABA American Jury Project question to the jurors regarding whether based on the evidence at trial and the recommends that “[v]oir dire should they or a family member or close friend court’s instructions. Furthermore, to be sufficient [1] to disclose grounds for had been involved in an accident” insuf- avoid ‘stake-out’ questions, which challenges for cause and [2] to facilitate ficient to ensure an impartial jury.16 this court agrees are improper, ques- intelligent exercise of peremptory chal- Recognizing the value of questions tions must be in the form of whether lenges.”9 incorporating specific facts, the Court or not the prospective juror ‘could explained that “[a] question should not fairly consider’ a life sentence, a death Incorporating case-specific facts depend upon the prospective juror to sentence, or both, not whether the into voir dire questions volunteer information that does not fall prospective juror would vote for life For more than a century, the Kansas within the question’s scope.”17 or death in light of particular facts.23 Supreme Court has recognized “how important it is that the panel should be General case-specific questions Other courts have recently adopted duly sifted, and that all prejudiced and versus “stakeout” or “commit- similar approaches, approving of case- objectionable persons shall be excluded ment” questions specific questions so long as they do from it.”10 In most cases, it will be dif- The propriety of case-specific ques- not improperly ask jurors to commit ficult if not impossible to “duly sift” the tions has been litigated most frequently to a particular verdict under particular panel without touching on at least some in the context of capital cases. While facts.24 One court offered the following case-specific facts. As one jurist has ex- these cases are informed in part by useful distinction between an improper plained, “bias and prejudice cannot be Eighth Amendment concerns unique stakeout question and a proper fact-spe- probed in a vacuum, and therefore some to capital cases, they are at heart about cific question: discussion of the evidence is inevitable. how best to ensure, through adequate And it may occasionally happen that a voir dire, the Sixth Amendment’s For example, a juror may not be asked material piece of evidence which strong- guarantee of “a fair trial by a panel of whether evidence of rape would lead ly favors one party coincides with a bias impartial, indifferent jurors.”18 him or her to vote for the death pen- 14 Journal of the Kansas Association for Justice

alty. However, a juror may be asked Circuit considered an appellant-defen- determine whether the juror is actu- if, in a murder case involving rape, dant’s claim that a prosecutor’s stake- ally disqualified. Rehabilitation can he or she could fairly consider either out questions violated the defendant’s be a valuable method of discovering a life or death sentence. The first due-process rights. The prosecutor had whether jurors who express doubt about question is an improper stake-out described a “hypothetical” series of facts their ability to serve should, in fact, be question. The second question is not paralleling the government’s evidence, excused for cause.36 At least one appel- a stake-out question because it only and had then asked potential jurors to late court has found error in a district asks whether the juror is able to fairly vote on whether they thought those facts court’s refusal to allow defense counsel consider the potential penalties.”25 established guilt.30 The prosecutor then to rehabilitate jurors challenged by the “referred back to these questions during state.37 Allowing counsel the opportu- The distinction between proper closing statements.”31 nity to rehabilitate jurors challenged for fact-specific questions and improper The Fifth Circuit rejected the defen- cause by opposing counsel helps courts stakeout questions appears as well, if dant’s claim only after noting that the more fairly evaluate jurors. only implicitly, in Kansas cases. As defendant had not preserved the claim But courts should exercising caution noted above, the Kansas Supreme Court below, and that the evidence against in retaining jurors simply because they has generally encouraged trial courts to the defendant was “considerable.”32 The give lip service to magic words fed to grant counsel broad latitude to discuss Court nonetheless found the prosecu- them during the rehabilitation process. relevant facts during jury selection; and tor’s voir dire questions “highly suspect” In Thompson v. State,38 for instance, a the Court has only affirmatively disap- and cautioned, “[w]e do not approve of prospective juror “stated that he had not proved of fact-specific questions that ‘commitment’ questions of the variety at formed an opinion as to Thompson’s constitute stakeout questions. issue here.”33 The prosecutor’s extraction guilt or innocence only seconds after For example, in State v. King,26 the of a promise by the jurors to convict stating that Thompson was guilty.”39 defendant argued on appeal from his based on evidence not yet presented was Relying on the juror’s final assertion, murder conviction that his lawyer exacerbated by the prosecutor’s explicit the district court denied the defendant’s should not have been prevented from attempt to collect on that promise dur- challenge for cause. The Nevada Supreme asking a potential juror whether evi- ing closing argument. Kansas pros- Court thereafter reversed, holding that dence that the defendant had drunkenly ecutors should beware that a properly “simply because the district court was said he was “going to get” the victim six preserved objection to this use of com- able to point to detached language that months before the victim’s death would mitment questions during voir dire may prospective juror eighty-nine could be be “evidence in your mind that [the de- well lead to a reversal on appeal. impartial does not eradicate the fact fendant] was guilty of the crime charged that he previously demonstrated partial against him?”27 The Court held that “Would you want you as a juror?” beliefs, capped by an unequivocal state- this question—which asked the juror while detailed discussions about a ment that Thompson was guilty.”40 to precommit to a certain verdict upon juror’s ability to fairly consider certain certain evidence—was improper: “The types of evidence is necessary to the voir Conclusion juror could not give an intelligent an- dire process, sometimes the most reveal- imagine if doctors were limited to swer to such a question, without know- ing answer a juror gives is in response asking patients general questions about ing in advance what the court would to a more general question: “If you were how they feel and were prohibited from instruct him in regard to his duties as a accused of a crime, how would you feel asking case-specific questions more juror in considering and weighing the if someone in your frame of mind were likely to yield an accurate diagnosis. evidence.”28 on your jury?” While counsel in criminal cases need a proper non-stakeout question This is a common voir dire ques- not resort to burglarizing jurors’ homes might have been as follows: “If the state tion, the answers to which have been in search of bias, they should be allowed presents evidence that six months before frequently cited by courts in reviewing to ask appropriately specific and probing the victim died, my client drunkenly said cause challenges.34 Indeed, courts them- questions necessary to selecting a fair that he was going “to get” the victim, selves have asked the question and have jury. p how might that evidence affect your approved of written questionnaires that ability to fairly weigh the rest of the facts included the question.35 Endnotes in this case?” This latter question asks “Would you want you as a juror” is an 1 U.S. Const. Amend. VI; Morgan v. Illi- not what effect the evidence might have effective voir dire question that has long nois, 504 U.S. 719, 729-30 (1992) (“Voir on the juror’s verdict, but rather what enjoyed wide use and apparent approval. dire plays a critical function in assuring effect the evidence might have on the the criminal defendant that his [con- juror’s ability to perform his or her duty. Rehabilitation stitutional] right to an impartial jury a final note about stakeout questions. rehabilitation refers to further ques- will be honored. Without an adequate In United States v. Fambro,29 the Fifth tioning an apparently biased juror to voir dire the trial judge’s responsibility Journal of the Kansas Association for Justice 15

to remove prospective jurors who will S.W.3d 743, 765 (Tex. 2006) (Medina, J., “provided the primary purpose of not be able impartially to follow the dissenting). such questions is to ensure impartial- court’s instructions and evaluate the 12 Morgan, 504 U.S. at 734-35 (“As to ity as opposed to committing jurors to evidence cannot be fulfilled.”) (citation general questions of fairness and particular findings”; emphasizing that omitted); William T. Pizzi & Morris impartiality, such jurors could in all “[t]here is a crucial difference between B. Hoffman, Jury Selection Errors on truth and candor respond affirmatively, questions that seek to discover how Appeal, 38 Am. Crim. L. Rev. 1391, 1409 personally confident that such dog- a juror might vote and those that ask (2001) (noting implicit requirement of matic views [indicating an inability to whether a juror will be able to fairly Sixth Amendment “that there be some follow the law in considering a life or consider” particular evidence); State recognized mechanism—challenges death sentence] are fair and impartial, v. Jackson, 836 N.E.2d 1173, 1190-92 for cause—to effect the guaranty of while leaving the specific concern un- (Ohio 2005) (trial court abused discre- impartiality”). probed.”). tion by prohibiting defense counsel 2 K.S.A. 22-3408(3). 13 State v. Darling, 208 Kan. 469, 476 from incorporating case-specific fact 3 Frank P. Andreano, Voir Dire: New Re- (1972) (in case charging criminal abor- that one murder victim was three years search Challenges Old Assumptions, 95 tion, “an attempt by counsel for the old when questioning potential jurors Ill. B.J. 474, 476 (2007) (citing studies). defendant . . . to discover if there is any for bias: “[w]hile it is improper for 4 K.S.A. 22-3408(3). bias or prejudice against one charged counsel to seek a commitment from 5 See, e.g., State v. Neighbors, 21 Kan. with abortion on the jury panel should prospective jurors on whether they App. 2d 824, 829-30 (1995) (court did not be unduly restricted”; nonetheless, would find specific evidence mitigat- not abuse discretion in prohibiting “[w]hile the trial court perhaps should ing . . . counsel should be permitted open-ended questions about prospec- have granted the appellant more leni- to present uncontested facts to the tive jurors’ attitudes towards interracial ency in this respect, on the record pre- venire directed at revealing prospective marriages), and cases cited therein. sented we cannot say the court abused jurors’ biases”). But see United States v. 6 The statutory limits on the trial court’s the exercise of its power of discretion in McVeigh, 153 F.3d 1166 (10th Cir. 1998) control of questioning have only been limiting the inquiry by the appellant”); (interpreting counsel’s case-specific recited in two cases, and have never see also State v. Zamora, 247 Kan. 684, questions as improper stakeout ques- been incorporated into the standard of 692-93 (1990) (in rape case involving tions, and holding that case-specific review. See State v. Pioletti, 246 Kan. 49, bondage, trial court’s refusal to let questions are not necessary), disap- 54 (1990); State v. Case, 228 Kan. 733, counsel “get into the evidence” during proved of on other grounds by Hooks v. 737 (1980), disapproved of on other voir dire by asking potential jurors Ward, 184 F.3d 1206 (10th Cir. 1999). grounds by State v. Kingsley, 252 Kan. about their attitudes towards “unusual 25 Fell, 372 F.Supp. at 771. 761 (1993). sexual practices” was “close question,” 26 101 Kan. 189 (1917). 7 State v. Hayes, 258 Kan. 629, 631 (1995) but not abuse of discretion); State v. Pi- 27 Id. at 191. (citations omitted). oletti, 246 Kan. 49, 54-55 (1990) (where 28 Id. 8 Kerby v. Hiesterman, 162 Kan. 490, 497- trial court cut off discussion of insanity 29 ___ F.3d ___, 2008 WL 1914318 (5th 98 (1947) (citation omitted); see also defense during voir dire, “the voir dire Cir. May 2, 2008). Swift v. Platte, 68 Kan. 1 (1903) (“[i]t was not well handled by the trial court,” 30 Id. at *8. is [counsel’s] right to first learn the but limits on questions were not abuse 31 Id. facts, and he must do so to intelligently of discretion). 32 Id. exercise his right to challenge peremp- 14 732 N.E.2d 1100 (Ill. App. 1 Dist. 33 Id. torily”; “as parties and their counsel 2000). 34 See, e.g., State v. Isgitt, 590 So.2d 763, cannot be expected to know personally 15 Id. at 1107. 765 (La. App. 3 Cir. 1991) (relying every juror who may be called into the 16 Id. in part on juror’s answer to defense box, an examination sufficiently broad 17 Id. counsel’s question “Would you want should be permitted to enable a party 18 United States v. Johnson, 366 F.Supp. somebody that feels the way you do, as to determine upon his peremptory 2d 822, 825 (N.D. Iowa 2005), quoting you’ve expressed it to me in the last few challenges”) (citations omitted). Irvin v. Dowd, 366 U.S. 717, 722 (1961). minutes, sitting on the jury?” to hold 9 ABA Principles for Juries & Jury Tri- 19 366 F.Supp. 2d at 825. that juror should have been excused for als, Principle 11(B)(3). 20 Id. at 849. cause); State v. Hausauer, 149 P.3d 895, 10 Swift v. Platte, 68 Kan. 1 (1903) (ap- 21 Id. at 845. 900 (Mont. 2006) (relying in part on ju- proving voir dire inquiry in per- 22 Id. at 847-48. ror’s answer to defense counsel’s ques- sonal-injury case into jurors’ “possible 23 Id. at 849 (emphasis in original). tion “If you were on trial, would you interest or connection” with insurance 24 See, e.g., United States v. Fell, 372 F. want to be judged by a juror who has companies). Supp. 2d 766, 767, 771 (D. Vt. 2005) your attitude and feeling about this?” 11 Hyundai Motor Co. v. Vasquez, 189 (permitting case-specific questions to hold that juror should have been 16 Journal of the Kansas Association for Justice

excused for cause); Thompson v. State, (either defense counsel or prosecutor F.3d 423, 430 (6th Cir. 2003) (noting 894 P.2d 375, 376 (Nev. 1995) (relying asked potential juror: “[W]ould you court’s question to potential juror: in part on juror’s answer to defense want yourself as a juror on a case like “Would you want you as a juror?”). counsel’s question “If the shoe were on this?”); Carrillo v. People, 974 P.2d 478, 36 See Cortez ex rel. Estate of Puentes v. the other foot, if you were seated over 481 (Colo. 1999) (defense counsel asked HCCI-San Antonio, Inc., 159 S.W.3d 87, here, would you want a person who has potential juror: “So would you want 92-93 (Tex. 2005) (discussing value of these kinds of preconceived notions— you to be a juror in this case if you are rehabilitation). ?” to hold that juror should have been [the defendant]?”). 37 Mitchell v. State, 136 P.3d 671, 692-94 excused for cause: “most disturbing, 35 See, e.g., Eizember v. State, 164 P.3d (Okla. Crim. App. 2006). prospective juror number eighty-nine 208, 220 (Okla. Crim. App. 2007) (not- 38 894 P.2d 375 (Nev. 1995). agreed that he would not want to be ing that written questionnaire used 39 Id. at 377. seated in the defendant’s chair with a in capital case “asked if the potential 40 Id.; see also State v. Isgitt, 590 So.2d 763, person like himself on the jury”); Klahn juror were the defendant or the State of 767 (La. App. 3 Cir. 1991) (“A challenge v. State, 96 P.3d 472, 477, 479 (Wyo. Oklahoma, ‘would you want yourself for cause should be granted, even when 2004) (relying in part on juror’s answer as a juror in this case?’”); Garrido-Val- a prospective juror declares his abil- to defense counsel’s question “Would dez v. Poole, 384 F.Supp. 2d 591, 598 ity to remain impartial, if the juror’s you want to have you on your own jury (W.D.N.Y. 2005) (noting court’s ques- responses as a whole reveal facts from if you were charged with something like tion to potential juror: “[I]f you were which bias, prejudice or inability to that?” to hold that juror should have the Defendant on trial having your state render judgment according to law may been excused for cause); see also State of mind would you want yourself to sit be reasonably implied.”). v. Zabrinas, 271 Kan. 422, 434 (2001) as a juror?”); Lancaster v. Adams, 324

Reprinted from the Journal of the Kansas Association for Justice, Vol. 30, No. 6, July 2008.