I have written a couple of recent posts related to juror conduct as it pertains to use of electronic devices or social media. A recent criminal jury trial in Omaha provides another look at juror conduct and how to deal with potential issues. The case involved an attorney moving to have a sitting juror dismissed from service.
In a first-degree felony murder trial a juror who later said he disagreed with the felony murder law was left on the jury by the prosecutor. The reason: the juror was not among those who raised a hand in response to the prosecutor’s voir dire question of whether “anyone had a problem” with the felony murder law (while much more complicated than this, the civil litigator’s explanation of felony murder in this context is that someone who assists in committing a crime that is a felony can be guilty of murder simply because one of their accomplices kills someone while the two are committing that felony).
Nebraska Uniform District Court Rule § 6-1516 governs how voir dire may be conducted. It states:
(A) Voir Dire Examination of Prospective Jurors:
(1) Questions are to be asked collectively of the entire panel whenever possible.
(2) The case may not be argued in any way while questioning the jurors.
(3) Prospective jurors may not be questioned concerning anticipated instructions or theories of law and may not be asked for promises or commitments as to the kind of verdict they would return under any given circumstance.
In this case, as reported by Todd Cooper of the Omaha World Herald, the prosecuting attorney asked the question “does anyone have a problem “with the felony murder law” collectively of the entire panel. The juror did not raise his hand to indicate any problem. It would have been up to the Judge’s discretion as to whether the prosecutor would have been going too far by asking prospective jurors, one-by-one, how they felt about a certain law such as felony murder. Section 6-1516 does not seem entirely clear on that point other than to instruct that questions are to be asked collectively “whenever possible.”
One thing that is clear, however, is that voir dire is the first, and best, chance a trial lawyer has to determine if potential jurors harbor any impermissible bias or prejudice about a case. It is important to try to get the prospective jurors to talk rather than simply to respond. Once seated, even jurors perceived as hostile to the process will be difficult to unseat.