What is Voir Dire, Peremptory
challenge and challenge for cause?
[Old French, To speak the truth.] The preliminary examination of
prospective jurors to determine their qualifications and
suitability to serve on a jury, in order to ensure the selection
of fair and impartial jury.
Voir dire consists of oral questions asked of prospective jurors
by the judge, the parties, or the attorneys, or some combination
thereof. This oral questioning, often supplemented by a prior
written questionnaire, is used to determine whether a potential
juror is biased, knows any of the parties, counsel, or
witnesses, or should otherwise be excluded from jury duty. Voir
dire is a tool used to achieve the constitutional right to an
impartial jury, but it is not a constitutional right in itself.
Typically, a number of prospective jurors are called to the jury
box, given an oath, and then questioned as a group by counsel or
the court. Local federal rules generally provide for questioning
by the judge. Individual or sequestered voir dire is used in
rare cases where extensive publicity may potentially damage a
defendant's case; some jurisdictions mandate it in death penalty
cases. A prospective juror must answer questions fully and
truthfully but cannot be faulted for failing to disclose
information that was not sought.
The purpose of voir dire is not to educate jurors but to enable
the parties to select an impartial panel. Therefore, voir dire
questions should test the capacity and competency of the jurors
without intentionally or unintentionally planting prejudicial
matter in their minds. Trial judges have wide latitude in
setting the parameters of questioning, including the abilities
to determine the materiality and propriety of the questions and
to set the time allowed for voir dire.
A party may move for dismissal for cause to remove any potential
juror shown to be connected to or biased in the case. A court
may sustain counsel's request to strike a juror for cause, in
which case the juror steps aside and another is called. Or a
judge may overrule a challenge for cause if a suitable reason
has not been sufficiently established. Challenges for cause are
not limited in number.
Each side also exercises peremptory challenges to further shape
the composition of the jury. Peremptory challenges are used to
dismiss a prospective juror without the need to provide a reason
for dismissal. Statutes or court rules typically set the number
of peremptory challenges afforded to a party.
Voir dire also describes a court's preliminary examination of a
prospective witness whose competency or qualifications have been
The right to challenge a juror without assigning, or being
required to assign, a reason for the challenge.During the
selection of a jury, both parties to the proceeding may
challenge prospective jurors for a lack of impartiality, known
as a challenge for cause. A party may challenge an unlimited
number of prospective jurors for cause. Parties also may
exercise a limited number of peremptory challenges. These
challenges permit a party to remove a prospective juror without
giving a reason for the removal.
Peremptory challenges provide a more impartial and better
qualified jury. Peremptory challenges allow an attorney to
reject a potential juror for real or imagined partiality that
would be difficult to demonstrate under the challenge for cause
category. These challenges, however, have become more difficult
to exercise because the U.S. Supreme Court has forbidden
peremptory strikes based on race or gender.
Parties do not have a federal constitutional right to exercise
peremptory challenges. Peremptory challenges are granted by
statute or by case law. The number of challenges is usually
determined by statute, but some jurisdictions allow the trial
court to grant additional peremptory challenges. In federal
court each side is entitled to three peremptory challenges. If
more than two parties are involved in the proceeding, the court
may either grant additional challenges or restrict the parties
to the minimum number of challenges.
Peremptory challenges came under legal attack in the 1980s.
Critics claimed that white prosecutors used their peremptory
challenges to remove African Americans from the jury when the
criminal defendant was also African American because the
prosecutors thought that the potential jurors would be
sympathetic to a member of their own race. This constituted
racial discrimination and a violation of the Fourteenth
Amendment's equal protection clause.
The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from
excluding prospective jurors on the basis of race. Under the
Batson test, a defendant may object to a prosecutor's peremptory
challenge. The prosecutor then must "come forward with a neutral
explanation for challenging black jurors." If the prosecutor
cannot offer a neutral explanation, the court will not excuse
The Court extended this holding in criminal proceedings in two
later cases. In Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364,
113 L. Ed. 2d 411 (1991), the Court broadened the Batson rule by
stating that a defendant need not be of the same race as the
excluded juror in order to successfully challenge the juror's
exclusion. In Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348,
120 L. Ed. 2d 33 (1992), the Court held that the defense's
exercise of peremptory challenges to strike African American
jurors on the basis of their race was equally forbidden.
Previously, the court had ruled in Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660
(1991), that in civil trials a private party could not exclude
prospective jurors on account of their race by using peremptory
challenges. This series of decisions makes any racial exclusion
in jury selection constitutionally suspect.
The Supreme Court has also forbidden peremptory challenges based
on gender. In J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct.
1419, 128 L. Ed. 2d 89 (1994), the Court ruled that striking
jurors on the basis of gender serves to perpetuate stereotypes
that are prejudicial and based on historical discrimination. No
overriding State Interest justified peremptory challenges on the
basis of gender. Permitting gender-based strikes could also have
undermined the Batson holding, because gender might be used as
an excuse for racial discrimination.
In an extension of Batson, the Supreme Court of Connecticut
ruled that the Equal Protection Clause barred the prosecutor
from striking prospective jurors based on their religious
affiliation. The court, in State v. Hodge, 726 A.2d 531
(Conn.1999), distinguished religious beliefs and religious
affiliations. It held that litigants could strike prospective
jurors whose religious beliefs would prevent them from
performing their duties as jurors.
challenge for cause
n. a request that a prospective juror be dismissed because there
is a specific and forceful reason to believe the person cannot
be fair, unbiased or capable of serving as a juror. Causes
include acquaintanceship with either of the parties, one of the
attorneys or a witness, the potential juror's expression during
voir dire (questioning of the prospective jurors) of inability
to be unbiased due to prior experience in a similar case (having
been convicted of drunk driving, being a battered wife, etc.),
any obvious prejudice, or inability to serve (such as being
mentally disturbed). The judge determines if the person shall be
dismissed. Challenges and dismissal for cause differ from
peremptory challenges, which each side may use to dismiss
potential jurors without stating any reason.
(ven-eer-ay) n. the list from which jurors may be selected.