The Role of the Judge

In the trial of a case, the jury selection and voir dire examination are just as critical to the outcome of the case as the presentation of the evidence. The change of a single juror in the composition of the jury could change the result. Ter Keurst v. Miami Elevator Company, 486 So. 2d 547 (Fla 1986) (Adkins, J. dissenting).

The trial judge presides over this critical part of the trial, and referees the questioning of the prospective jurors by the attorneys. In a civil case, the attorneys for the parties have the right to examine the jurors orally during voir dire, and additionally the court may ask questions as it deems necessary, “but the right of the parties to conduct a reasonable examination of each juror shall be preserved.” FRCP 1.431. “Even though trial judges may question prospective jurors, their role in jury selection must not impair counsel’s right and duty to question the venire.” Sanders v. State, 707 So. 2d 664, 668 (Fla. 1998) This can frequently result in some underlying tension between the trial judge and trial counsel during jury selection, and many excellent judges have been reversed for becoming overly involved in voir dire and/or limiting the attorneys’ questions of the panel.

As a bare legal principle, the trial judge does have discretion in determining the extent of counsel’s examination of prospective jurors, but the discretion is not unlimited. A trial judge abuses its discretion when it unreasonably limits counsel’s ability to conduct a “meaningful” voir dire, or when it imposes unreasonable time limitations or limitations on the number of questions during voir dire, or when it interjects itself into counsel’s voir dire without any objection from opposing counsel. See, Carver v. Niedermayer, 920 So. 2d 123 (Fla 4th DCA 2006); Mendez v. State, 898 So. 2d 1141 (Fla 5th DCA 2005); Campbell v. State, 813 So. 2d 540 (Fla 4th DCA 2002); Miller v. State, 785 So. 2d 662 (Fla 3rd DCA 2001); Brown v. State, 678 S0. 2d 910 (Fla 4th DCA 1996).

Judges should always be mindful that voir dire is the first opportunity the attorneys have to establish personal contact with prospective jurors and the only occasion they have to enter into a dialogue with jurors. It has been repeatedly observed that “prospective jurors do not respond in the same manner to inquiry by a judge as they do to questions by counsel,” and that when responding to a question asked by the judge a prospective juror is more likely to provide a response designed to “please the judge” than to be completely candid. See, Campbell, supra,  Miller, supra, Mendez, supra. See also, How a Judge’s Voir Dire can Teach a Jury What to Say, Shuy, R., Georgetown University (Discourse and Society, Vol 6, No. 2, 207 – 222, 1995) — “the evidence is clear that the judge’s questioning style can cause jurors to change their positions during voir dire;” and Judge versus Attorney Conducted Voir Dire, Jones, S. Univ. of Alabama, (Law & Human Behavior, Vol. 11, Number 2 / June 1987) — “attorneys are more effective than judges in eliciting candid self-disclosure from potential jurors. Subjects changed their answers almost twice as much when questioned by a judge as when interviewed by an attorney. The judge’s presence evokes considerable pressure toward conformity to a set of perceived judicial standards among jurors, which is minimized during an attorney voir dire.”)

Because jurors respond differently to lawyers than to the judge, it is fundamental that the trial judge must allow counsel adequate time to question the panel to ascertain latent or concealed prejudgments by prospective jurors, and to inquire into core areas of the case, even if the court and opposing counsel have already thoroughly inquired into those areas.

And a trial judge should rarely, if ever, interject itself into the midst of counsel’s voir dire exam if there is no objection from opposing counsel. As noted by the Fourth District Court of Appeal in Brown, supra, “We feel constrained to add a final observation. It is clear that the trial judge interjected himself into the defense counsel’s voir dire examination of jurors and final argument without any objection from the prosecutor. While it is certainly true that a trial judge has the power to take such action even in the absence of an objection from the opposing lawyer, it should be exceedingly rare to do so. Repeated interjections without objection can recast the judicial role from impartial adjudicator to an apparent advocate for the party foreswearing objection. The occasion authorizing such judicial action should thus be both singular and intolerably offensive.” Brown at 913.  If a judge improperly interjects him or herself into the trial when there are no objections from the other side, it can result in the judge being removed from the case. See, Ramos v. Casey, 35 FLW D2086 (Fla 5th DCA 2010) (holding that trial judge’s sua sponte making evidentiary objections in personal injury case during plaintiff’s case-in-chief was reversible error and required removal of judge) , and Spencer v. State, 615 So. 2d 688 (Fla. 1993) (holding that trial judge’s sua sponte excusal of jurors for allegedly having low IQ’s was reversible error.)