Court Approves “Hypothetical Questions” in Voir Dire

October 31, 2006

The Third District Court of Appeal recently approved the use of hypothetical questions by counsel during jury selection provided the questions are “designed to determine whether the jurors could correctly apply the law.” In Moore v. State, 939 So. 2d 1116 (Fla. 3 DCA 2006) the Court approved the use of hypothetical questions designed to explain the difference between testimonial evidence and physical evidence to prospective jurors.

Relying on fifty year-old precedent, the Court held that a trial court may permit hypothetical questions during voir dire if they make a “correct reference to the law of the case that aid in determining whether challenges for cause, or peremptory are proper.”

This opinion is in accord with established Florida law. In Franqui v. State, 699 So2d 1312 (Fla 1997), the Supreme Court of Florida approved the use of hypothetical questions in voir dire. Adopting the reasoning of Judge Pearson in Lavado v. State, 469 So2d 917 (Fla 3 DCA 1985), the Court held: “Where a juror’s attitude about a particular legal doctrine (in the words of the trial court, “the law”) is essential to a determination of whether challenges for cause or peremptory challenges are to be made, it is well settled that the scope of voir dire properly includes questions about and references to that legal doctrine even if stated in the form of hypothetical questions.”

In phrasing hypothetical questions, counsel must take care to make sure that no reference is made to the actual facts of the specific case that is being tried, nor to ask the jurors in advance what their decision would be under a certain state of evidence or upon a certain state of facts. See, Williams v. State, 931 So2d 999 (Fla 3 DCA 2006). “It is improper to ask jurors hypothetical questions purporting to embody testimony that is intended to be submitted for the purpose of ascertaining from the jurors how they will vote on such a state of testimony.” Franqui v. State, supra.

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