We recognize that there is a power differential between a United States District Court judge and a juror. Generally, a juror would be hard-pressed to disagree with a premise stated by the district court with which the district court asks the juror to agree. The better practice is for the district court to ask non-leading questions when examining a juror for bias.
Sounds like another trial lawyer blogger, complaining about judges who browbeat jurors into denying their biases. But wait: it's the Seventh Circuit Court of Appeals, in an opinion yesterday called United States v. Sloan. I promised I'd talk more today about lawyers on juries, and I'll get back to that soon, but this might be a big deal.
It's not the judge's leading question that's surprising. Some fine judges read this blog, but it has to be said: judges ask leading questions in voir dire all the time. They're famous for their skill in rehabilitating jurors who admit prejudice. What's surprising is that an appellate court noticed it, and didn't like it.
Free Electricity for Life!
What happened here? Mr. Sloan was allegedly a con man, promising “Free Electricity for Life! Plus—the opportunity to make $492,000.00 per year” to those who paid to join a pyramid scheme he called the Christian Freedom Foundation. A juror named Propes told a courtroom deputy "of his concerns about his ability to remain impartial since, in his mind, the case involved Christianity." After opening statements and some evidence, the trial judge raised the issue with the parties, and questioned Mr. Propes on the record:
The district court: Hold on just a second and let me say out loud what I was told; that you thought it might—when you got to thinking about it more, you thought it might have been Christian, although we covered it several ways, and you apparently were concerned because you’re a deacon in your church, that you might have some conflict of interest or something?
Juror Propes: Yes, I don’t know if I just didn’t catch it the whole time or exactly what it was, but I have an issue with making money with churches. I’m a member of a church, I’m a faithful member of a church, and I know we have different ways of acquiring money, and it’s not through anything like this. I just totally disagree with this.
The district court: All right. You can tell now from having heard both the opening statements and more of the evidence that the issues of the Christian religion are really tangential to this dispute. So I don’t foresee any way in which there would be a conflict of interest. And I just wanted to raise that with you and make sure that you were of the same way of thinking, that it shouldn’t conflict with your religious beliefs. Do you agree with that?
Juror Propes: Yes.
"There is little doubt that the district court’s colloquy with Juror Propes was leading," the Seventh Circuit said. "[T]he district court asked Juror Propes to agree with its own opinion."
Not much law to go on
I ran a few quick searches on federal judges leading in voir dire, and found not much -- a trial judge here or there praised for open-ended voir dire questions (as in United States v. Campa last year in the Eleventh Circuit), but none chastised for leading. The main exception was an exceptional dissent, in an 2000 Eighth Circuit case called United States v. Love, in which the trial court's entire questioning on race was:
You will have observed that the defendants in this case are African-Americans. I do not have to tell you, but for purposes of this question I will tell you, that race is not an issue in this case. It cannot be. It must never be an issue in deciding the guilt or innocence of a defendant.
Is there anyone here who for whatever reason cannot follow that simple basic principle? (No response)
I take it from your silence, then, that you are pledged to give these defendants a fair and impartial trial notwithstanding their ancestry. (No response)
The Eighth Circuit upheld that voir dire in a single sentence, but Northern District of Iowa Judge Mark Bennett, sitting by designation, wrote a long and masterful dissent. He collected law from every angle on careless voir dire when the issue is race, and pointed often beyond what is required to what may be aspired to, as set out especially in the National Jury Project's book Jurywork: Systematic Techniques. Judge Bennett said:
“[T]he group voir dire setting can impede honest statements of opinion or bias.” 1 JURYWORK § 2.11 at 2-72.30. It is not surprising that the jurors, confronted with a demand for a public response to a closed-ended, non-leading question, following the district court’s admonition, provided only a socially acceptable response. See 2 JURYWORK § 17.03 at 17-53. The district court then took the lack of any negative response to its question as an affirmation or pledge that the jurors would give the defendants a fair and impartial trial “notwithstanding their ancestry.” Trial Transcript at 56. However, closed-ended questions, such as the one and only one propounded by the district court, encourage jurors to deny their true feelings and opinions about race, effectively ending the voir dire before it has begun. See 2 JURYWORK § 17.03 at 17-54.
(I don't have a direct free link to the Love opinion, but you can get it by searching the court's web site here; it's Case No. 99-3291, decided June 15, 2000.)
The more things stay the same
The Seventh Circuit's distaste for leading in voir dire didn't help Mr. Sloan yesterday. The court finished this section of the opinion with little trouble:
That being said, there was no indication during the questioning by the district court that Juror Propes had any bias. Juror Propes was selected as a juror because he swore that he could be impartial and base his verdict only on the evidence that was presented. After expressing his concerns and having them assuaged y the district court’s explanation, he agreed that there was no conflict. The district court was satisfied by Juror Propes’ response, as are we.
It's not easy to be satisfied with Mr. Prope's response. What he said, after only opening statements and a little evidence, was "I just totally disagree with this," meaning Mr. Sloan's business model. But defense counsel hadn't objected at trial, or asked that he be removed, or moved for a mistrial -- which made it easier for the appellate court to be satisfied.
For the trial notebook
It's worth remembering the case, though. If you haven't yet, take a piece of paper, write "Trial Notebook: Voir Dire" at the top, and start a list of cases you want handy reference to, beginning with "leading questions -- United States v. Sloan." Let me know what happens when you use it.
(Photo by Finiky -- her nature shots are wonderful -- at http://www.flickr.com/photos/kim/12692534/. License details there.)