Litigation Strategy Pretrial Matters

7 Grounds for Objecting During Voir Dire

Once the jury panel has been sworn, prospective jurors are selected at random, seated in the jury box, and questioned. Counsel may conduct a “liberal and probing examination” that’s calculated to discover juror bias or prejudice related to the circumstances of the case. CCP §222.5. But if opposing counsel’s questions go out-of-bounds, you need to be ready to object.

Here are seven types of questions that give rise to an objection during voir dire:

  1. Question attempts to indoctrinate jurors on the law. In exercising discretion, a trial judge may restrict voir dire examination from being used to preindoctrinate the jurors on one attorney’s view of the law to ensure that such questioning doesn’t mislead the jurors. A question may be objectionable if it includes a correct statement of the law but is taken out of context.
  2. Question based on incorrect statement of law. Voir dire questions on propositions of law are often vulnerable to the objection that the proposition stated isn’t legally correct. Serious misstatement of the law may be grounds for a new trial or reversal on appeal if it’s not remedied at the time of questioning.
  3. Question asks jurors to prejudge evidence. Voir dire questions are improper if they call for a promise that’s inconsistent with a juror’s duty to hear the evidence with an open mind and to refrain from forming or expressing an opinion until the case is submitted for a verdict. Prospective jurors can’t be asked to state their reactions to particular evidence or to promise to give weight to the testimony of a particular witness.
  4. Question introduces prejudicial matter. Asking a prospective juror a question containing or suggesting inadmissible and prejudicial matter is not only improper but also constitutes misconduct. It’s misconduct to introduce during jury voir dire the kinds of improper matters that give rise to misconduct when introduced in the opening statement, examination of witnesses, or closing argument, such as religious beliefs and insurance.
  5. Question unrelated to challenge for cause (special rule for criminal cases). In criminal cases, the examination of prospective jurors “shall be conducted only in aid of the exercise of challenges for cause.” CCP §223.
  6. Question prohibited by judicial administrative standards. Certain types of voir dire questions are prohibited by the Standards of Judicial Administration in both civil and criminal cases. For example, counsel may not ask questions that precondition the prospective jurors to a particular result or comment on the personal lives and families of the parties or their attorneys. See Cal Rules of Ct, Standards of J Admin 3.25(f) (civil cases); Cal Rules of Ct, Standards of J Admin 4.30(c)(criminal cases).
  7. Question in improper form. Most objections to the form of questions to witnesses (e.g., that the question is ambiguous, compound, or argumentative) can also be made to the form of questions asked of prospective jurors during voir dire examination. The trial judge has discretion to permit leading questions and hypothetical questions.

For more detail on each of these objections as well as guidance on how to make your objections to voir dire, turn to CEB’s California Trial Objections, chap 6. For practical pointers on conducting voir dire, check out CEB’s program Tips to Implement in Your Next Set of Jury Voir Dire Questions, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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