As most are aware, there is an ongoing debate over whether defendants can receive a fair trial with judge conducted voir dire. Many believe that attorney conducted voir dire is the only way to seat an impartial jury. However, with attorney conducted voir dire comes longer trials and significant probing into the minds of jurors. This debate has resurfaced this week with the empanelling of jurors for the Neil Entswistle trial. Mr. Entwistle, an Englishman living in Massachusetts, is accused of shooting to death his wife and nine month old baby. And as one might expect with details like this, the case has garnered significant publicity both here and in England.
Neil Entwistle circus begins Boston Herald
British man Neil Entwistle charged with shooting his wife and baby ... Telegraph.co.uk
Father driven by debt, porn, court to hear National Post
In addition to claiming that the media has tainted the jury pool, Mr. Entwistle's attorney, Elliot Weinstein has argued that the judge in the case is not asking the right questions. Unlike many other states, Massachusetts allows the judge to question the jurors. Attorneys may submit proposed questions, however, the judge is not required to use them. According to Attorney Kevin Mahoney who is blogging about the case, "[i]n Massachusetts, voir dire is not a tool, but a hoax. Like an apparition, it only gives the appearance of substance."
The defendant's attorney is unhappy because he wants the judge to explore the attitudes of potential jurors with respect to individuals who use the Internet to surf for sex. According to Mr. Weinstein, "I don't know if we can overcome the problem, because we're not in charge of the questions."
With this all said, we now arrive at our question of the week. Who should conduct voir dire? If not attorneys, should judges be required to at least ask some of the questions posed by attorneys?
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3 comments:
To some jury selection is the most important part of a trial. All jurors are not the same nor are cases and because of that, a generic jury selection by the court is not going to reveal all of the information necessary to permit an attorney to make an intelligent decision on whom to remove from the jury panel by peremptory challenge or by a challenge for cause. I favor lawyer voir dire.
As one of the prospective jurors stated on Monday "you would have to be living under a rock" not to know about this trial living in MA. At the end of the day, most times the jury system works...there are those blazing exceptions (OJ). I have been archiving the TrialVids on YouTube - in case any one has missed the live feed.
http://www.youtube.com/user/RealityCanBeEvil
TrialBuzz said...
At the end of the day, most times the jury system works...there are those blazing exceptions (OJ).
The Simpson case was one of those rare exceptions where the jury system did work - despite an insane amount of publicity.
Examples where it didn't include David Camm, Fr. Gerald Robinson, Scott Peterson, Darlie Routier, and, of course, all of those cases where DNA or other external actors have proven that the conviction was wrong, something which the whole appeals apparatus failed to do despite its massive costs.
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