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?