Individual sequestered voir dire — the questioning of each and every potential juror outside the presence of all other jurors — draws passionate support from some Connecticut lawyers. From the criminal defense bar comes the assertion that it is the best means of screening jurors for bias and prejudice. Plenty of civil lawyers like the practice, too, although in their case I suspect it is because jury selection can be strung out for days while they prepare their cases.
I hate it. I’ve tried lots of cases in state and federal courts. I don’t see any difference in the quality of jurors between the two fora.
Too often, individual sequestered voir dire is less a means of determining whether jurors can be fair and impartial than it is a way of indoctrinating jurors.
Consider the following riff, used by an increasing number of state prosecutors.
"Can you see the difference between proof beyond a reasonable doubt and proof beyond all doubt?"
The potential juror agrees.
"You can under appreciate that we are not required to proof our case to a certainty, can’t you?"
The venireperson nods, even if hesitantly.
"Few things can be proven with certainty, right?"
"The law only requires us to satisfy a human standard, not an impossible standard. Does that make sense?"
"So you won’t hold us to an impossible standard, but merely to the human standard of proof beyond a reasonable doubt?"
Yes, the candidate agrees, for the fifth time now, a captive recipient of this meaningless metaphysical drivel.
I’ve listened to some variant of this voir dire repeatedly over the years. The lost weeks I spend each year listening to prosecutors question jurors has me persuaded there is a secret playbook they all share. I’m willing to bet some social psychologist approved the manual.
The book is no doubt filled with gems like this reference to reasonable doubt as a "human standard."
I was listening to a prosecutor recite this stale catechism for the umpteenth time not long ago with a growing sense of annoyance. What is all this claptrap about a "human standard?" What other kind of standards do we humans apply?
I stewed over it over a couple days of voir dire, and found myself thinking "to err is human, to forgive is divine." Was the prosecutor inviting jurors to consider a standard in which it is all right to be wrong? I mean, we’re all human, right?
I finally objected.
"Judge," I said, "I don’t know what the prosecutor is talking about.
Does he think there is some semi-divine universe out there to which we have access? Certainty is a human standard. So is proof beyond a reasonable doubt. All of our ideas are, well, our ideas. By definition everything about us is human. This line of question is confusing, or, at a minimum, meaningless."
The judge, a former prosecutor, looked bemused.
"Judge, I want jurors to be certain that the state has proven its case beyond a reasonable doubt before they return a verdict of guilty. This business of putting certainty in one column, and a `human standard’ in the other, is an invitation to dilute the state’s burden of proof."
The prosecutor looked wounded, and mumbled some response I no longer recall.
"I am going to sustain the objection," the judge said, to my surprise.
It was a small triumph I savor as I wander, often for days on end, through the verbal detritus of individual sequestered voir dire.•