*1
398 v HARRELL
PEOPLE
(Calendar
3).
Argued April
Docket
56582.
No.
No.
Decided
Rehearing
December
1976.
denied
Examination of if done should put counsel; questions suggested by although all reasonable scopе largely of voir dire the discretion of the trial court bounds, kept and should be within reasonable it should be enough attorneys broad to enable to ascertain certain permit develop challeng- information as them will a basis for ing exercising for cause as well as for peremptory challenges. *3 Jury—Voir 7. Constitutional Law — Dire. litigant’s right impartial jury requires A to trial an before given opportunity he be to necessary obtain the information (Const challenge prospective jurors peremptorily cause 14). 1, art § Jury—Voir Prejudice. 8. Criminal Law-— Dire —Racial Conclusory questions prospective jurors on voir dire of which suggest any the answers do not furnish basis the often peremptory challenge; ques- intuitive of exercise inadequate they preju- tions are unless tend to reveal latent juror may easily acknowledge dices which the to himself or others that inñuence his deliberations and decision. Jury—Voir Prejudice. 9. Criminal Law — Dire —Racial A put black defendant is entitled have the court jurors individually questions tending any subjec- out ferret panel tive bias entertained a member where doorstep following defendant was arrested on the home a his chase, police and at the time of arrest at and the trial the (the polarized matter had a into confrontation between whites officers) (the police defendant, family and blacks other his and witnesses); special circumstances the case indicate the presence inquiry of racial overtones and must extend beyond empty exercise, perfunctory a although mere and op Opinion the Court propounded questions obliged all to ask court is not form in in exact which them nor to ask defense counsel they were submitted. General, Robert A. Kelley, Frank J. Attorney Barton, A. Bruce General, Derengoski, Solicitor Justin, As- M. and James Prosecuting Attorney, Attorney, people. fоr the Prosecuting sistant S. (by Marshall Defender Office Appellate State Redman) for defendant. a
Coleman, was convicted Defendant 750.479; MSA officer, MCLA assulting police a officer, eluding police 28.747, fleeing and and 28.747(1). On December 750.479a; MSA MCLA jail to 6 months defendant was sentenced days on costs, jail additional or an $150 count, fine $100 sentence suspended one the other count. costs on $100 affirmed the conviction.1 Appeals The Court of appeal limited to the granted leave to This Court herein.2 two considered man and most young black Defendant are white. involved the incident officers police ques- trial, submitted defense counsel Prior In lieu of the during voir dire. tions to be asked an- questions, defendant’s of the defend- that he would utilize seven nounced preju- bias or racial to cover ant’s jurors. the proposed dice in
Issues 120 submit the trial refusal 1. Did court’s defendant a jury to the on voir dire deny (1974). 554; App 411 221 NW2d 1 54 Mich 2 (1975). 812 394 Mich 388 384 398 Opinion оf the Court trial a impartial jury by fair and preventing meaningful challenges exercise of cause?
2. Did the trial court’s refusal to submit 120 deny to the on voir dire defendant trial aby impartial jury by fair and preventing the intelligent challenges? use of peremptory
Discussion In Michigan, the examination jurors may or, be conducted the court in its discretion, by the attorneys.3 scope voir dire examination is within the discretion of judge trial and his will not decision be set aside absent an of that abuse discretion.4 Voir dire affords attorneys an opportunity elicit sufficient develop information rational basis for exclud ing veniremen whether or by cause peremptory challenges.5
Relying Carolina, on Ham v South 524; US 93 S 848; (1973), Ct 35 L Ed 2d and related decisions, Federal appellate the defendant main- tains he had a constitutional to voir dire the veniremen further prejudice. Although on racial it is true that the Ham decision held that Four- teenth Amendment required interrogate jurors upon the of racial subject preju- dice after the defendant’s timely request, Ham does not stand for the proposition that the trial judge must question ask every dealing with racial prejudice that might defense wish heard. Rehnquist, writing Court,
Justice
for the
stated:
GCR
511.3.
Hittle,
631;
App
(1971); People
Corbin
34 Mich
preme
form,
any particular
in
question
required
put
the
questions on
of
the
number
any particular
to ask
by petitioner.
to do so
requested
simply
subject,
because
out,
point
in a
pains
at
Aldridge was
Court in
system
the federal
authority within
where its
context
than
supervision
does
closer
good
deal
courts allows
Amendment,
trial court had
the
Fourteenth
the
asked,’
to be
discretion as to
broad
(1931)]. The
Ct,
L Ed
US,
at
51 S
[75
at
questions permit
number
discretion as to form
of the Fourteenth
Clause
Process
ted
the Due
context, either
In this
as broad.
is at least
Amеndment
petitioner
urged by the
brief, general questions
pro
the attention
to focus
appear sufficient
they might en
any racial
spective jurors on
While Ham, Justice Mar- decision majority’s with the stated: shall must be a defendant suggest that "I not mean to do limitless or that any question propound
permitted
Al-
dire.
preliminary
time must be devoted
preju-
free
interest
though the defendant’s
countervailing
interests in
state
strong, there are
dice is
the avoid-
trials and
of criminal
expeditious conduct
larger as
interests bulk
These
jury intimidation.
ance of
more
uncovering prejudice becomes
possibility
discretion
judge has broad
The trial
attenuated.
or vexatious.
are irrelevant
questions that
to ask
refuse
Thus,
charac-
prejudice is of a novel
the claimed
where
showing of
preliminary
ter,
might require a
judge
allowing the
possible prejudice before
or of
relevance
533.
409 US
questions.”
holds:
specifically
Footnote mаjority that agree with "I also 398 Opinion op Court properly any particular question decline to ask any particular form or ask number of on a subject.”
In its pronouncement in area, most recent this Supreme States, United Court Jus- Powell, tice held dire about racial preju- dice is required not constitutionally absent circum- stances in comparable significance those exist- ing Ham, Ross, in supra. 589; Ristaino US S Ct L47 Ed 2d 258 Defendant Ross was a black man charged who was with two other blacks for robbery, the armed assault and battery by means a dangerous weapon, and assault and battery with intent murder of white man employed by Boston as a University security guard. The trial judge pose refused to a question directly related to racial during the voir dire of the veniremen.
The Court’s opinion said Ham "reflected an assessment of whether under all of the circum- stances presented there awas constitutionally sig- that, nificant likelihood quеstioning absent about racial prejudice”, jury would not be impartial: "The strongly suggested circumstances Ham specific need voir dire questioning to include about prejudice. racial Ham’s defense was that he had been framed rights promi- because his civil activities. His community activist, nence as rights a civil if not already veniremen, inevitably known would have been revealed to the jury members in the course presentation of his of that defense. Racial there- issues inextricably fore were up bound with the conduct of the Further, reputation trial. rights Ham’s as a civil activ- ist and the interposed defense he likely were to inten- sify any prejudice that jury individual members of the might In harbor. such circumstances a voir we deemed dire that included questioning specifically directed to op Opinion the Court Ham, sought by necessary to prejudice, racial when impartial requirement the constitutional meet impaneled.” Ham, question veniremen "the need
Unlike not rise did prejudice” "to about racial specifically in Ristaino. dimensions” constitutional constitutionally were not Although the questions Ristaino, opinion footnote said required propound appro- is to "the wiser generally course preju- designed identify priate the defendant”. states requested if dice not de- require questions "are free to allow or manded Constitution”. case, following colloquy took
In the instant the trial between defense counsel place in chambers: *7 you ones Hayes: you
"Mr. indicate me which Could going to use? are 92, 105 and 106
"The Court: 26 and making them to conform to the Court additions with rulings. why you rejected Hayes: I have all May "Mr. ask — go of questions which I believe to the essence the the matter, Your Honor? give I will the voir dire. think "The Court: The court any prejudice any court’s voir will cover bias or the dire purpose it—it is hot to have —that is of viewpoint your or jury which is biased or choose thе [sic] get prosecution’s, which unbiased but think the dire will unprejudiced, and I court’s voir Knowledge your it. of are fairly cover instructions [sic] signed by questionnaire contained the court them— repetitious go it into jurors, and would be nature not for voir dire. many proper of them are of the given.” These are dire, asked
During the voir trial court following questions: 398 Mich op Opinion the Court you dealings experiences any any "Have or had might persons you
with make it difficult for black impartial By 'you’ to sit in mean on this case? judgment I your your family, also immediate members spouse, your children? “(none) “The Court: that defendant is Will fact black in
any way your judgment affect in this cause?
“(none) give “The any you Court: more Would credence to testimony you person give of a white than would testimony person, the equal? everything of black being else “(none) give equal “The Court: persons That is two stature stand, upon equal appearance, and so forth and one skin, skin,
ais white one has a blaсk any that in way prejudice you way? in either “(none) you give police “The Court: any Would officers testimony you more credence their than would a person officer, police who is not a because of the fact police the witness was a officer?
“(none).” Our examination 120 questions proposed by counsel discloses that many repetitive are court questionnaire6 and many proper are not voir dire.7 GCR 510. 7Many proposed questions irrelevant, vague of defendant’s are inconsequential (e.g.): you position "61. Did ever take the 'where there is smoke there someplace’?
must be some fire you Perry "62. Have ever watched the Mason show? *8 you "67. anyone Negroes Have ever made a statement help just should be able to anybody themselves like else does? you "70. people Do think there is difference between black and people?” white Levin, Opinion by Dissenting J. case, court trial followed the In the instant by the United recommended course of action supra. Supreme Ristaino, We find Court States discretion. The trial the trial court’s no abuse of questions regarding contained voir dire court’s sufficient which afford were necessary challenge counsel information defense prospective jurors, peremptorily8 or for either by impar- tried an Defendant’s to be cause. judge’s questioning. jury protected by the tial was is affirmed. The defendant’s conviction JJ., Ryan, Fitzgerald, Lindemer, concur- and J. Coleman, red with (dissenting). agree all We prevailing
purpose expressed dire, as of voir opportunity opinion, provide "an counsel is to develop a rational elicit information sufficient excluding whether for cause veniremen basis challenge”. by peremptory or sufficiency disagreement Our concerns by he so used whether limited the extent Harrell content deprived rights under the Mich his was impartial igan to a trial an fair Constitution jury.2 assaulting3 jury convicted
Harrell was challenges peremptory in the was allowed five The defendant However, 1963, 511.5; 768.12; MSA MCLA 28.1035. instant case. GCR challenges peremptory only utilized four of his the defense counsel panel expressed at the his satisfaction with the close and dire. * * * life, property, liberty person deprived "No shall process 17. law.” Const art § without due right to prosecution, every the accused shall have “In criminal * * * impartial public .” speedy Const a art 1, 20. § 750.479; 28.747. MSA MCLA *9 Levin, Dissenting Opinion J. fleeing police and officer. eluding4 and The Court Appeals affirmed.5 Harrell and were black. All all his witnesses police testimony officers favorable giving prosecution were white. trial,
Before the Harrell’s counsel submitted 120 questions, voir dire many designed to reveal latent racial bias jurors. The judge general questions asked a number race, probing questions. on omitting the more We would there are significant hold where overtones, probing questions are necessary to enable a litigant to exercise intelligently his rights challenge, and that the refusal to ask such judge’s abuse discretion to control the voir dire examination.
I Two police attempted officers to stop Harrell driving. Following chase, drunk a ten-block he parked his car and ran down the street to the back parents’ his home. apprehended He was at door and advised that he was under arrest fleeing eluding a police officer. large A crowd gathered.
The prosecution
police
called seven
officers as
witnesses,
gestae
res
six white and one black. The
six
gave
white officers
testimony favorable to the
prosecution indicating that Harrell and the crowd
struggling
were
with the police, and that
officers did not strike Harrell. The black officer
testified that he
Harrell,
saw officers dragging
limp
unconscious,
to the street and
him
then strike
several
times.
28.747(1).
750.479a;
MCLA
MSA
Harrell,
People
App
54 Mich
Harrell’s officers, did strike fied that he him, the crowd did not officers struck the officers. harrass dire, counsel asserted the voir Harrell’s
Before *10 confronta- a "black-white that the case involved atmosphere charged emotionally tion” in an along racial lines alignment that of witnesses which racial overtones significant evidenced He operative trial. submitted throughout be many exploring dire questions, the 120 voir argued that extensive and bias. Counsel provide to a suffi- probing necessary voir dire was intelligent right cient exercise to basis challenge prospective jurors.6 submitted,7 asked, not questions but
Among following: were the anyone to you ever made a statement "Have help like
Negroes just to themselves should able anybody else does?” people
"Do think the black Jackson you legitimate complaint they accuse County when have society racism?” white white any "Do think is difference between black you there people people?” and white in Jackson any aware of racial friction you
"Are explain you fault do community? you How do it? Whose think it is?” right to person discrimi- you
"Do
believe that a
has
subsequent
peremptory
all Harrell’s
failure
exercise
Counsel’s
right
appeal.
on
Cf.
challenges
this issue
does not waive his
raise
Stockard,
say
to a
"Have any experience had with persons might black it you make difficult for impartial sit judgment By on this case? 'y°u.’ I mean your also family, your members immediate spouse, your children?” "Will the fact that the defendant black in way your judgment affect in this cause?” *11 you give "Would more credence to the testi- mony person of a you give white than to the testimony person,' everything of a black being else equal?” given persons "That equal two stature and so upon stand, forth white equal appearance, the and one is a skin, skin, one has a black would that any way in prejudice you in way?” either
II pronouncements The of the United States Su- preme Court Carolina, in Ham v South 409 US 524; 93 Ct 848; S 35 L (1973), Ed 2d 46 Ross, Ristaino v 424 589; US 96 1017; S Ct 47 L Ed (1976), 2d 258 concern questions only tangentially related to the issue before this Court.8 8 Note, in Both cases are discussed a Dire Criminal Procedure —Voir Right Prejudice, —The L to Jurors on Racial 37 St J Question Ohio (1976). 412 397 v Harrell Dissenting Opinion posses-
Ham prosecution court a state was young, was a The defendant marijuana. sion record, black, conviction prior without bearded He activist. claimed rights civil locally as a known get 'out were officers "that law enforcement activities, and rights that of his civil him’ because drug charge”.9 The had on he been framed refusing erred held Court concerning prejudice. racial any questions ask in the Ristaino was a collateral attack federal In line with conviction. on a state court courts cutting thе same term during decision another corpus review of state court Federal habeas back expansion of the convictions,10 eschewed the Court courts and courts States district role the United pro criminal state court appeal supervising between defendant ceedings; racial difference resort support will not alone victim 11 on voir dire issues. federal courts Ristaino, "voir Court, although said The to racial was dire questioning directed declared, statutory having created this The “The State Court juries, selection of dire examination] framework [voir required by Clause of the Four- the Due Process fairness essential teenth petitioner requires this record the the facts shown Amendment under interrogated permitted the issue of to have the on 527; 848; Carolina, Ct v 409 US 93 S bias.” Ham South racial L Ed 2d (1973). Powell, 465; Stone 96 S L Ed 428 US Ct 2d 1067 against a white of crimes of violence Ross been convicted had rights security guard. constitutional held that his federal Court through Amendment were violated the Fourteenth secured refusal prejudice. “The mere fact directed to racial ask alleged and the a white man of the crimes was the victim likely Negroes than were the trial was less distort were defendants “were special inextricably in Ham” where issues factors involved Ross, up trial”. Ristaino (1976). with the conduct bound *12 1017; 258, 597; 96 S 47 L Ed 2d Ct 424 US acknowledged in a state that criminal defendant "[a] The Court 'impartial jury’ as guaranteed Sixth Amendment an is court through Amendment” applicable the States the Fourteenth process guarantee a defendant "[principles of also due Ross, supra, p 6. impartial jury.” fn Ristaino Opinion by Dissenting required [by constitutionally Fourteenth Amendment], course generally pro- the wiser pound appropriate designed to identify racial if prejudice requested by the defendant. Under our would have re- we supervisory power quired as much of a federal court fаced with the Aldridge v United States circumstances here. See 308, 313; US Ct S L Ed 1054 [283 (1931)] * * * . The States also are free to allow or require questions not demanded by the Constitu- Ross, tion.” Ristaino v supra, p fn (Empha- 9. sis supplied.)
Ill Ristaino, In Aldridge, as the defendant was black and the victim was white. The Court held that Aldridge was entitled have the veniremen interrogated concerning prejudice; reviewing decisions, state the Court concluded that "pro- priety of such an inquiry has been generally recog- nized”.
Aldridge had been convicted the District of Columbia. The Court rejected argument such inquiry unnecessary was of privileges because rights enjoyed by jurisdiction: blacks in that question "But the is not as to the civil privileges of negro, as sentiment dominant of the community general and the absence any disqualify- ing prejudice, but as to the bias particular ** * are to try who the accused. any one of them [I]f was shown to a prejudice pre- entertain which would rendering verdict, clude his a fair gross injustice perpetrated allowing Aldridge him to sit.” States, supra, p United 314. The authorities are in general agreement where racial juror’s affect a attitude *13 399 v Opinion Levin, Dissenting J. inquiry permit judge dire con- trial must the cerning prejudice.12 racial opinions disagreement in the filed
There is no inquire today concerning to con- Harrell’s cerning prejudice.13 racial
IV questions of the kinds issue here concerns judge’s may and the extent be asked inquiry, and not to limit the whether discretion the judge the examination. To or counsel conducts questions to slanted to conserve time and predispose prospective jurors avoid particular result,
to a judge may submitted restructure put permit counsel to counsel and refuse to questions directly.14 12 284, 2d, Jury, p See 859. 47 Am Jur § economic, social, Anno, Racial, political religious, Similarly, or see subject inquiry ground
prejudice
proposed juror
proper
of
or
of
as
of
Anno, Racial,
case,
1204;
challenge
54
ALR2d
on voir dire
criminal
economic,
political prejudice
proposed juror
religious,
of
as
social or
ground
challenge
inquiry
proper subject
on voir dire
civil
or
case,
A
right
to have counsel develop infor-
mation necessary
provide a
to
basis for exercise of
challenges was expressed
this Court
by
after
the
1963 revision of the court rules:
litigant’s
"A
right
impartial
to trial before an
(Const
14)
requires
art
given
that he be
§
an
opportunity
to
necessary
obtain the information
to
challenge such individuals for
or peremptorily.”
cause
Hardwick,
Bunda
v
376 Mich
138
305
NW2d
(1965).17
expressions
Earlier
by this Court are in accord.18
permitting
attorneys.”
jurors
by
the
of
examination
the
to be conducted
the
Honigman
Hawkins,
2
Michigan
&
Court Rules Anno-
(2d ed), Comments, p
tated
465.
15 Callaghan’s
(2d
Michigan Pleading
ed), 38.29, p
6
& Practice
44
§
(emphasis supplied).
16 Honigman Hawkins, supra, p
(emphasis
&
supplied).
language appears
opinion
dissenting
signed by
While this
in a
justices,
justices,
separate opinions,
three
four other
in two
stated
"agree”
they
dissenting
except
opinion
and "concur in all” of the
portion concerning
Hardwick,
a
another issue. See
v
376 Mich
Bunda
640, 673-674
indispensable
litigant
givеn
“It
is
to a fair trial
that a
be
a
opportunity
reasonable
to ascertain on the
dire
of
whether
Opinion Dissenting
suggest
conclusory
Questions which are
"informa-
provide
fail
may
"correct” answer
rights
of
chal-
for exercise
necessary”
tion
inquiry is
searching
probing
A
often
lenge.
challenged
scope
being
jurors
subject
for
cause or
the
even
summoned are
peremptorily.
large
of examination of
In a
is within the discretion
measure
judge;
but it
on voir
dire
showing
facts
not be
as
that would
must
so limited
to exclude
ground
challenging
or
reasonable exercise
constitute
cause
peremptory challenges.
limit the examination is
abuse of
286 NW
So to
Stewart,
436, 438-439;
289 Mich
discretion.” Fedorinchik
(1939)(emphasis supplied).
parties
they may
permit-
important
rights of
be
is
to the
"[I]t
discovering
inquiries
facts which will
the means of
ted
which
challenge depends
justify
juror.
of a
the exclusion of
success
himself,
juror
upon eliciting
from other
as
from the
well as
information
such
mind,
sources,
or
as will enable
as to
state
condition
his
* *
*
competency.
judgment
to his
A
a
party
in order
ascertain as
him,
the court as
be formed
challenges,
peremptory
right
number of
has
to a certain
proper
understandingly
it
for him to
is
exercise this
juror
practicable
disposition
nearly
toward
as
any inquiry
any
subject-matter
controversy; and
and toward
bring
light
tends to
bias
within
limits which
a
reasonable
” Monaghan
Agricul-
proper.
juror
v The
entertained
(1884)
Co,
238, 246;
(empha-
Unless adequate counsel are allowed voir dire examination, a wealthy litigant the state or enjoy overwhelming advantage superior due to investigation resources for pretrial panel.19 The purpose of dire is to disclose not only conscious prejudice but also "unconscious prejudice against a defendant because of his race color”.20 you asked —have had any experi- affecting ences with blacks the "impartiality” your judgment, you give would "more credence” to the testimony of a person, white would you be way "prejudiced” by the color person’s of a skin, "will the fact that the defendant is black in any way your affect judgment” to little —amounted you more than prejudiced against "Are blacks?” New prospective jurors would answer affirmatively overtly prejudiced unless proud of it. "Natural pride human suggest negative answer whether there was a juror reason the could not impartial.” fair and United States v Dellinger, 472 1972). (CA F2d
Questions such you as: "Are prejudiced against or, blacks?” "Will the fact the defendant black in any way your affect judgment this cause?” suggest response which a *16 ” Babcock, Preserving Power, See Voir Dire: "Its Wonderful (1975). Note, Similarly L Establishing Rev 545 Stanford see Voir Dire: Peremptory Minimum Standards to Facilitate the Exercise of Chal lenges, 27 Stanford L Rev 1493 Carter, supra, p United States v 1135. v Opinion Dissenting juror giving facilitate give. They should juror regard to whether it without the "correct” answer jurors will readily few the whole truth. Since is which is harboring socially attitude an admit upon, such frowned unacceptable judicially and ju- unless are worthless is ror racist. outspoken the answers suggest which Conclusory questions the often intuitive for do not furnish basis challenge.21 of peremptory of the right exercise prejudices into the latent They insight no provide veniremen, jurors’ affect which prejudices but which even the perspectives perceptions and perva- More subtle and realize exist. juror may not subjective required is before such questioning sive biases can be ascertained. tend to inadequate they unless
Questions are may not juror which the prejudices reveal latent may or others that easily acknowledge to himself influence deliberations and decision. Co,supra; Monaghan Agricultural Fire Towl See v The Insurance Stewart, Hardwick, supra; supra; Bradley, Bunda v Fedorinchik v supra. peremptory challenge it "The is that is one essential nature of the stated, being inquiry and without a reason without exercised without subject rejection cognizable real or рermit challenges While cause court’s control. narrowly specified, provable legally a on peremptory rejection partiality, permits for a basis of easily designated imagined partiality is or demonstra- less impressions upon the and unaccount- ble. It is often exercised 'sudden upon prejudices apt to conceive the bare looks and able gestures we are associations,’ another,’ upon upon juror’s or a 'habits juror’s] feeling questioning 'the bare indifference [a the sometimes provoke frequently It exercised on a resentment.’ is no less legal thought proceedings grounds normally or official irrelevant action, race, occupation namely, religion, nationality, or affilia- prosecutor jury duty. question people For summoned tions of juror particular is counsel must decide not whether a or defense partial, nationality is in but whether one from different race group widely explored This Court less.” Swain fact likely to It is known that these factors are less be. well dire, during prosecutor accused. both requires by jury no has held that the fairness of trial 220-221; Alabama, 824; L 2d Ct 13 Ed 380 US 85 S (citations omitted). (1965) *17 384 Levin, Dissenting Opinion by J. are necessary, When searching they juror should be to each separately addressed to avoid the from sense of insulation individual re- response seems to sponsibility group provide. that
V The of Appeals United for States Court the Circuit, judge Seventh recognizing discretion to control inquiry the extent of and the need to prevent repetitive questioning, underscored litigant of a to probe below surface for attitudes which would a basis of provide challenge for or cause and declared:22 peremptorily, "Prejudice deep running and bias are streams more often than not by stemming concealed calm surface from an tence. Extended not questions of awarеness societal for distaste their exis- trial-delaying interrogation may pierce veil, yet specific fewa associational process may as a maieutic indicate the dor- mant prejudice, preconceived seeds of and unalterable concepts or disqualifications. other non-fairness The stage being result cause dance of counsel challenge reach the for basis well, challenge but could because of an abun- caution, bring peremptory about a eye which an omniscient would have known Lewin, should have been exercised.” United States (CA 467 F2d 1972).23_ conspiracy persons pay The court reversed a conviction to vote, registering ground on the had failed question prospective jurors concerning employ contributions Chicago Daily ment the Better Government Association or the anticipated prosecution News. The chief witnesses were in their еmploy. quickly juries, "We are told the British courts secure their time-consuming and criticism is directed at trials within trials in this country wonder, jury may when members as their being probed, being lives are too extended voir dire is who is tried. We think the criticism justified ready say but we are not or, indeed, person liberty property, who has his his at stake must compelled tion basis. accept strictly cursory, interroga generality on a happy point,
"At permitted some mesne there must be sufficient Dissenting Opinion Seven” "Chicago were convictions Circuit, reversed, part because the Seventh pro- dire examination failure to permit their attitudes concerning toward spective jurors in the war involvement Viet protests against culture, Nam, with law en- relations youth *18 exposure pre-trial to forcement officers and their declared that defendants publicity. The Court ranging examination entitled to broad to were right to facilitate not exercise сhal- only exercise of lenge peremptory for cause but also general question said that a challenges. The Court could be fair and panel they to entire whether produce be relied on "to impartial could not state of mind. We any disqualifying disclosure of that a is so alert prospective juror do believe to his Thus it is essential to ex- prejudices. own and attitudes of the plore backgrounds jurors bias, some to discover actual extent order cause”; one, right empty this is not to be an "[i]f questioning produce, light in the of the factual situation involved trial, knowledgeable particular reasonably in the exercise of the some basis for a challenge. proper’ 24(a)] give it R P "We do not deem 'as deems Crim [F ignore proposed questions unlimited discretion to nor to trial permit arbitrary put questions. refusal to such counsel, obligation request, do not consider the court’s to let on "We bias, get undеrlying reflecting prejudice suspect at bases on or other as, discharged by general questions there factors to be reason tion such 'Is you fairly impartially try obliga- cannot this case?’ This particularly discharged by general not seem to be direct people on human characteristics that most confrontation are reluctant to admit they possess. hand, suggest we do not the same "On the other mean to explored substantially questions, matter with tedious be numerous similar meaning. repetitions, only slightly shadings variant down, rules can be laid court within No hard and fast but the trial general guidelines the tion so as that tory.” hereinbefore set forth must exercise its discre exploration germane not to block the reasonable factors challenge, peremp might expose a basis whether for cause or 1972). (CA v Lewin, 1132, 7, States 467 F2d 1137-1138 United Dissenting Opinion by must, permitted upon request, the defendants background sufficient into the and atti- inquiry tudes of them to to enable exercise challenges”. intelligently peremptory their United (CA Dellinger, States 1972). F2d In a paralleling factual situation instant case,24 the Court of held Supreme Arkansas it an was to confine the abuse of discretion to: "Would are the fact defendants mem- bers race and that black officer is a member of race the white tend influence your verdict or either you tend for or against in this case?” defendants
The court that voir declared dire examination "should not only be limited to that which might disqualify such inquiry because also serves the purpose determining whether counsel should * * * exercise a peremptory challenge. '[C]ounsel decides whether to use a peremptory challenge not *19 much so on what a venireman may say, but on ” State, how he says it.’ Cochran v 256 Ark (1974): 101; 505 521 SW2d "' * * * lawyers, All trial and all students of the jurisprudence, general science directed know that panel, jurors, to the or to individual judgе beginning who at special of the trial has no regarding issues, information relationship or the parties, circumstances, attending or the sometimes fail to elicit answers which cause even the most juror existing prejudicial conscientious reveal an the ”25 Court.) (Emphasis by status.’ 24 police injured performance A white was officer struck and in the investigating neighbor of his duties when disturbance in black hood. 25 Arkansas, 99; (1974), quoting 256 Cochran v Ark SW2d Transportation Johnson, Missouri Paciñc Co v 197 Ark SW2d v Harrell Dissenting Opinion by
The Appeals Court of United States Eighth Circuit the conviction of an reversed Amer- prosecuted ican Indian larceny connection with the on an Indian killing of a calf reservation because the trial had unduly restricted the voir dire place examination. The trial took October, following well-publicized Wounded Knee place events which had taken spring general of 1973 in the same locality; "feelings of the local citizenry high”. ran that, court concluded "under these circumstances there existed a sincere concern over prejudicial issues general and that a question rhetorical ask- ing if the jurors would be fair and unbiased toward questionable defendant was of sufficiency”. The judge had asked the jurors whether they were prejudiced "either way concerning American Indi- ans to such an extent gentlemen these could get a fair impartial trial before you”. He refused to ask probing questions designed to deter- mine the veniremen’s attitude regarding Indians.26 The Eighth Circuit said:
"Unquestionably one of the most effective means of ensuring impartiality is proceeding the voir dire during questioning which expose will any latent bias enter- by prospective tained jurors. exposure Such is necessary parties if the are expected to be to exercise their challenges in intelligent and informed manner. accept customs, you "Do the idea that actions and needs of those persons living raised and in an Indian culture can be different from customs, persons actions and needs of those raised in a white you accept customs, culture?” "Do the idea that these actions and persons living needs of just those in an Indian culture are raised customs, persons as valid as those white culture?” "Would actions and needs raised in a *20 any you jurors difficulty accepting have right the idea that Indians have a to and do hunt wildlife such as * * * deer or rabbits on the reservation ?” United States v Bear (CA 1974). Runner, 8, 502 F2d 398 Mich Dissenting Opinion by case, "In single question the instant the court’s con- cerning general only scope bias was but was made effect probing group. to the veniremen as a monologue was by more like a the court than a jurors. Although examination the use of general questions approved by has been this court omitted], practice the better in a [citations sensitive case is to probing questions direct touching areas of possible prejudice juror, to each individual with the to be asked the trial or counsel. questioning Individual the overall particularly necessary when surroundings suggest circumstances and possibility of racial Runner, bias.” United States v Bear (CA 1974). 502 F2d 911-912 In case, the instant as in Cochran and Bear special Runner, indicating there are circumstances presence of racial overtones. The defendant doorstep following was arrested on the of his home police gathered. chase. A crowd Both at the time polarized of the arrest and at the trial the matter into a confrontation between whites (the police officers) (defendant, family and blacks his witnesses). other
In most cases there will be no reason to believe jurors might prejudiced against that a circumstances, for or litigant. special Where, however, there are such inquiry beyond must extend empty perfunctory mere exercise. obliged ques- The court was not to ask all the propounded tions Harrell’s counsel nor to ask they them the exact form in which were submit- was, ted. Harrell however, entitled to have the put jurors individually questions court to the tend- ing subjective to ferret out subtle bias enter- panel, provid- thereby tained ing a member of the intelligent a basis for exercise of both for-cause peremptory challenges. impartial jury The historic to an and a fair *21 Levin, Dissenting Opinion by J. right This in the Constitution. is rooted plaintiffs cases to criminal and in civil and secured obligation Court has This defendants. give power meaning supervisory of its exercise right, to assure minimum content to that requirements are met and to estab- constitutional that will secure that lish enforce standards charged litigation prob- emotionally where through prospec- ing inquiry to cut is needed self-appraisal. juror’s subjective tive defendant’s conviction and We would reverse trial. remand a new J., J.,
Kavanagh, C. concurred Williams, with