2.Voir Dire Questioning — Publicity, Prior Opinions, and Question 95
5 linesMR. BRUCK: We have a couple matters to take up before the first juror if we could. First, your Honor, we would ask that when a juror indicates that they have been exposed to some publicity in response to your initial question that the Court follow up on that right away. I think it's a lot easier for the Court to probe than it is for us to do it later. Obviously, the question -- when people say, Well, as much as I could, or, you know, ambiguous responses, we think it would be good to find out what the problem is.
We've noticed a tendency over the last week or so for the government to really pepper the defense follow-up questioning with objections which have tended to become a little, we think, excessive. And, now, it could be that, with all due respect to our absent colleague, the change in the lineup across the table may resolve the problem.
MS. PELLEGRINI: That would be doubtful.
MR. BRUCK: But I'm told that it wouldn't. We will do our best not to object unless it's absolutely necessary, and we would ask that the government do the same.
In that connection, this continual objection has been coming to our simply asking jurors really tracking Question 77, about whether the juror had an opinion about this case prior to the time that they received their summons or prior to the time that they found out what case they were being summoned for. We've found from experience -- I think we've all learned -- that a lot of the "unsures" are a response not so much to the juror's state of mind but to the fact that they have been summoned for jury duty. In other words, Well, I'm unsure because I haven't heard the evidence now that I'm a juror. But that doesn't answer the question of whether the juror had an opinion about either guilt or punishment back when they were just regular members of the community. That is clearly an issue we are entitled to probe in order for the Court to be able to assess the reliability of their opinion, if they have one, that they could put those opinions aside. We first have to know what they thought. Those are not stakeout questions in any way, shape or form. Those are questions about impartiality.
They're important for the Court's determination, and they're important for our right to establish a record on the impartiality of the jury panel as a whole. So I think we should be allowed to ask them. I could point to examples in the record where we weren't or where there were so many objections to our asking that pretty straightforward question that the process just bogged down, and I hope that won't happen anymore.
The -- finally, the questions about Question 95, could the juror -- would the juror actually impose the death penalty if the juror thought it was appropriate? The Court, I think very correctly, some many days ago, stated that -- and I'm quoting now -- "I think there's a difference between intellectually being unable to vote for the death penalty and not being sure here that at some future occasion, on some body of evidence emotionally, she will be able or unable to do it." In other words, it's a rather useless inquiry to ask people hypothetically what they would be able to do in the event of many events that haven't yet occurred, about the evidence in the case and the juror's thought processes.
And the government has increasingly tended to place great emphasis on that question. I'm not sure that if we had to do it over the question should even belong in the questionnaire. But since it's there, it gives the government information that they are entitled to rely on in the exercise of peremptory challenges, but it does not advance the question of the qualification of jurors. And we really think that it ought not to be focused on to the extent that it has been.
So those are our observations based on what's happened to date.
MR. CHAKRAVARTY: Brief response, your Honor, just the -- the way to avoid objections is to not ask objectionable questions.
The defense appears to want it both ways with regard to the questionnaire. The questionnaire was agreed upon. Reasonable follow-up is being allowed. When they want to inquire more about something that suits their interests, Mr. Bruck raises the point that the uncertain -- or unsure answers require much more follow-up, whereas the questions that the government has an interest on and the defense suggests that we should just stick with the answer in the questionnaire. The truth is this is an art, and the Court is navigating both the questionnaire and the juror's responses to the questions. And sometimes even hypothetical questions yield a lot more information from nonverbal communication as well as from just somebody's reaction as well as the fact that the question is being put to them orally. All of those factors influence a juror's response and the ability to assess whether it's a qualified juror.
The government is satisfied with how the voir dire is proceeding. It's proceeding with a questionnaire that was agreed upon, a process that has been -- that has evolved into something that is, I think, yielding qualified jurors. And I think there is no reason to change that process, your Honor.
THE COURT: Let me just say with respect to the first point, I think both sides have increasingly prefaced questions to the jurors with long, stage-setting statements. And I think that is often the source of objections, and I'd encourage both sides to get to the questions a little more directly. That's what we're trying to get. We're not trying to engineer the juror into a particular answering frame of mind but to determine what's in the juror that we have to learn about. So I just make that observation. I think it's bilateral.
I'd just briefly say that I think asking about Question 95 continues to have utility. There are some cases where it's more meaningful than others, but I think it's -- it does -- I think it has surfaced some people who affirm that it's not just an intellectual matter. It's a matter of their moral responsibility and whether they can align those two things when they sometimes might seem that they're not aligned. Anyway, I think 95 still has utility. Okay.