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Voir Dire: Research Assignment Three

Objections During Voir Dire

            Improper questions should not be asked during the voir dire process.  However, counsel should be ready in case one is asked. Many of the objections that are made during witness examination can be made, appropriately of course, during the voir dire process.  These objections include relevance, misleading or misstating the law, argumentative, and confusing.  See generally State v. Kreutzer, 928 S.W.2d 854 (Mo. 1996) (en banc). There are also objections that are special to the voir dire process: attempting to obtain a commitment and open-ended question.  Id.  After an improper question is asked, the opposing counsel should object and cite the proper reason for the objection. The trial court judge then rules on the appropriateness of the question.

            The trial court has discretion to judge the appropriateness of specific questions.  State v. Clark, 981 S.W.2d 143 (Mo. 1998) (en banc).  The nature and extent of the questions asked are discretionary with the court.  Id. (citing State v. Smith, 649 S.W.2d 417, 428 (Mo. 1983) (en banc)).  “The trial judge is in the best position to judge whether a disclosure of facts on voir dire sufficiently assures the defendant of an impartial jury without at the same time amounting to a prejudicial presentation of the evidence.” Id. The judge’s rulings can be reviewed for abuse of discretion.  Id.

            When ruling on the appropriateness of a particular question, the judge must consider the question within the context of the case. Id. (citing State v. Antwine, 743 S.W.2d 51, 58 (Mo. 1987) (en banc)).   The judge then takes into consideration the rules (as laid out in Assignment Two) and decides whether the question can be answered or not.  Id.  If a question is found not to be proper, counsel can request the question be stricken from the record and ask the court to instruct the jury to disregard the question.  This is a common occurrence when an inappropriate “insurance” question is asked.  See generally Saint Louis University v. Geary, 321 S.W.3d 282 (Mo. 2009) (en banc).

The opposing party can go so far as to ask for a mistrial as a result of an improper voir dire question.  Id.  This is also a common occurrence when an inappropriate “insurance” question is asked.  Id.  If a party wants the trial court to declare a mistrial based on an improper question, the party needs to make this request immediately following the improper question.  See Stucker v. Rose, 949 S.W.2d 235, 238 (Mo. Ct. App. S.D. 1997) (“A request for mistrial comes too late when it is not requested at the time the objection is made”). Otherwise, the party could be deemed to have waived this remedy.  Id.

            However, trial court judges make mistakes too; thus, rulings during voir dire are appealable.  To preserve trial court error, it is necessary to first give the trial court the opportunity to correct the error.  See Pollard v. Whitener, 965 S.W.2d 281, 288 (Mo. Ct. App. W.D. 1998).  Counsel must make timely objections and state the grounds for said objection.  Id.   This preserves the record for the appellate court.  See, Id.  Counsel might also need to make an “offer of proof” to the trial court by identifying the area of inquiry and why he should be allowed to ask the question.  Id.  The appellate court then will review the issue for abuse of discretion and whether a new trial is warranted.  Id.