The voir dire process may impress upon the jury
the importance of their task and may enhance their awareness
of their duty to decide the case fairly and impartially
Zeisal and Diamond
Stanford Law Review
30 (1978) 512
1. Introduction
For those that do not know what the above words “voir dire” mean, American law refers to it is the process for empanelling jurors to try civil and criminal cases. Canadian law interprets their meaning as a trial within a trial.
Some of the problems mentioned in my posting of 24 May 2009 arose in a recent Vancouver civil jury motor vehicle accident trial causing the trial judge to declare a mistrial. He did so because jurors expressed a concern that their own motor vehicle insurance premiums might go up if they gave the plaintiff a high damage award.
Applying English case law, the B.C. appellate court decided that B.C. lawyers should not suggest to a jury an appropriate range for an award of damages covering the plaintiffs claim for compensatory damages (pain, injury, suffering and loss of enjoyment of life). Nor can trial judges do so since the amount of those damages is a question of fact and facts are for the jury not for the judge.
Apparently frustrated by the lack of assistance they received on this issue, one juror collected information on damage amounts from the web. Those amounts were not evidence in the trial. Therefore, the jury should not have taken them into account in its deliberations.
Because of these procedural errors, the trial judge declared a mistrial. That caused both sides the extra expense of a second trial in about 6 to 12 months.
This posting suggests how some of these errors can be corrected.
4. Summonsing the jury panel – politicians and judges
Under our quirky Constitution, provincial legislators enact the laws on summonsing eligible individuals for jury duty in both civil and criminal cases. Thereafter, federal legislators enact the laws on the empanelment of jurors in criminal cases. Provincial legislators enact the laws on the empanelment of jurors in civil cases.
The B.C. provincial Jury Act describes the kind of people who are disqualified for sitting as jurors in both civil and criminal trials. Interestingly, the Act exempts members of the federal Parliament, the provincial legislature and judges from jury duty.
Federal and provincial legislators are not the people’s masters. They are the people’s servants. Why should these legislative servants escape their civic responsibilities of jury duty when their masters cannot? So long as legislators do not have to attend sittings of their respective legislative bodies they should be eligible for jury duty. Probably, they would only serve on one jury during their lifetime.
The same goes for judges. Their names should be on the jury list so long as they are not engaged in judicial duties. Like most Canadians they will probably serve on just one jury.
These three groups of people either make or apply the law. What better way to discover if jurors have difficulty in using that law to achieve justice? Their participation as jurors from time to time will make them better legislators and judges. It will also serve as a reminder that they are the servants of the people not their masters.
2. Posting of 24 May 2009 – juror information sheet
My posting of 24 May 2009 recommended the adoption of a comprehensive juror information sheet and a challenge for cause procedure. Right now, potential B.C. jurors do not have to reveal information about themselves except for their municipal residence and their occupations.
Perhaps counsel on the next civil jury trial can persuade the trial judge at a pre-trial hearing that jurors be required to complete an information sheet. With that in hand, perhaps the trial judge would agree to a challenge for cause procedure.
A suggested form for a juror information sheet can be found at this link: http://www.courtinfo.ca.gov/forms/fillable/mc001.pdf
Now to a suggested procedure of challenging civil jurors for cause.
3. Challenging civil jurors for cause – English or American procedure
B.C.’s Jury Act gives the parties the right to challenge jurors for cause. For unknown reasons, the B.C. Cabinet declines to publish the necessary rules although it has this authority under the Court Rules Act.
Two models exist for this process. Canada’s Criminal Code outlines a process for challenging jurors for trial in criminal cases. Like so many procedural Code sections, it is based on ancient English laws, leaves out vital steps, and takes too much time. Drafting similar civil rules would invite lengthy debate and likely end in failure.
The second is the American model. There does not seem to be any published rules governing the process. It is very flexible. Appellate courts give trial judges a wide discretion and rarely interfere.
A helpful book written by Randolph N. Jonakait – The American Jury System, Yale University Press, Chapter 10, outlines the challenge for cause process in American courtrooms for both civil and criminal trials.
Usually 12 potential jurors selected randomly from the jury pool come to the courtroom, and take an oath to answer any question truthfully that counsel or the judge might ask. They are then examined individually by the judge or counsel. Counsel may ask the judge to disqualify a juror because of bias. When this happens, judges will often ask the potential juror: “In spite of your present views, do you think you can reach a fair verdict based on the evidence you will hear and the law I will give you?” Almost always jurors will agree they can and those jurors are then empanelled.
Mr. Jonakait estimates only one juror in twenty is excused from jury duty for cause.
4. Challenging Canadian civil jurors for cause – modifying the American procedure
Presently, provincial Sheriff’s officers summons eligible jurors for both civil and criminal trials. In criminal cases, Sheriffs usually summons about 75-100 people for say 4 criminal trials. Without a challenge for cause procedure, usually the process can empanel 48 jurors in one day. Judges then tell these jurors to come back for their four respective trials at four future days when those trials begin.
In civil cases, the Sheriff summons about 20 individuals to make up an eight person jury. Each side has four peremptory challenges – dismissal of a juror without having to show cause. If they use these four challenges that leaves 12 persons out of the original 20 available for selection to sit as jurors.
The twenty potential civil jurors summonsed may not be sufficient if the parties exercise their right to challenge individual jurors for cause. However, the Sheriff could summons around 80 jurors for the empanelment of 32 jurors to try four civil cases. A potential juror challenged in one trial might be accepted as a juror in one of the three other trials.
American experience indicates it can take around two hours to empanel a civil jury using the challenge for cause procedure. B.C. lawyers and judges should be able to do the same. After the parties agree to the selection of eight jurors for each of the four trials, the judge will give them a date to return for these trials.
As mentioned in other postings, provincial legislators should amend the Jury Act to provide for six jurors not eight. There are no studies proving that eight jurors produce better justice than do six. Similarly, the rules might consider the appointment of one additional juror as an alternate. He or she would sit with the other six jurors during the trial in case one of the six regular jurors becomes unable to act. Verdicts should be unanimous.
1. History proves that autocratic leaders never tolerated trial by jury. As an English judge once said; “… it is the lamp that shows that freedom lives.”
Bottom line:
2. Canada’s parliamentary system of government is another form of autocracy. Controlled by Prime Ministers, federal legislators have almost eliminated trial by a criminal jury through design or neglect. Provincial Premiers have not complained. B.C. Premiers have done the same to civil juries by neglecting necessary reforms and charging the parties outrageously high governmental fees.
3. To restore our democracy, Canadians should promote and encourage the reform and maintenance of our civil and criminal jury trial system.
4. Adopting the many jury reforms mentioned on this site would be a giant step forward.
8 June 2009
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