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Voir Dire: Research Assignment Two

Last updated by Annaleigh Hobbs, JD '25

Acceptable Questions during Voir Dire

Just like during an examination of a witness, only certain questions are appropriate and allowed during the voir dire process.  The purpose of voir dire is to discover bias or prejudice so that a competent, fair, and impartial jury can be secured.  See State v. Clark, 981 S.W.2d 143 (Mo. 1998) (en banc).  Thus the questions asked by attorneys must be geared towards this goal. Id.  There is one overarching rule when considering whether a question is appropriate for voir dire:  a counsel cannot try his case on voir dire.  Id. at 146. 

            It is inappropriate to argue or to present facts in explicit detail during voir dire.  Id. (citing State v. Antwine, 743 S.W.2d 51, 58 (Mo. 1987) (en banc)).  Similarly, an attorney may not elicit a commitment from jurors on how they would react to hypothetical facts.  Id. (citing State v. Jones, 749 S.W.2d 356 (Mo. 1988) (en banc)). Counsel may not seek to predispose jurors to react a certain way to anticipated evidence.  Id.  Further, counsel may not cause the prospective jurors to pledge or speculate as to their actions in certain possibilities which may later occur or arise during trial. Brown v. Bryan, 419 S.W.2d 62 (Mo. 1967).

            However, the line is not drawn at “general fairness and follow-the-law questions.”  Clark, 981 S.W.2d at 147.  Courts have worried about drawing the line here because biased jurors “could respond affirmatively, personally confident that [their] dogmatic views are fair and impartial, while leaving the specific concern unproved. “ Id. (citing Morgan v. Illinois, 504 U.S. 719, 735 (1992); Murphy v. Florida, 421 U.S. 794, 800 (1975)). Thus, courts allow revelation of some portion of the facts of the case during voir dire.

            Since both parties have a right to an impartial jury, the Court and parties must determine a prospective juror’s personal knowledge about the case, the parties involved, and any exposure to pretrial publicity.  See State v. Antwine, 743 S.W.2d 51, 58 (Mo. 1987) (en banc).  “An insufficient descript of the facts jeopardize [parties’] right to an impartial jury.”  Id.  The right would be meaningless without the opportunity to check for bias.  See Clark, 981 S.W.2d at 147. “If jurors are not exposed to critical facts during voir dire, the parties lose the opportunity directly to explore potentially biased views, which all concern have a duty to investigate thoroughly.”  Id.  However, only those critical facts – facts with substantial potential for disqualifying bias – must be divulged to the venire. Id.

            Hypothetical questions can be appropriate during voir dire in some circumstances.  See State v. Roberts, 709 S.W.2d 857 (Mo. 1986) (en banc).  Hypotheticals can be used to help explain the law to jurors and ascertain whether jurors can follow difficult areas of the law. Id.  However, counsel must be careful not to mistake the law or to commit the veniremen to a theory of the case.  Id. Further, hypothetical questions can be used to introduce certain facts to the veniremen to look for any bias that may exist.  See State v. McFadden, 369 S.W.3d 727 (Mo. 2012) (en banc).