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State v. House11/20/1997
Protecting a Defendant's Right to an Impartial Jury, 42 Notre Dame Law. 925, 935 (1967).
{88} While voir dire may prove useful in many cases, I would not impose a rigid requirement that trial courts must always conduct voir dire of prospective jurors before ruling on a motion to change venue. Such a requirement unnecessarily infringes upon the broad discretion that trial courts traditionally are afforded in determining the scope of voir dire and other areas of inquiry that indicate whether juror bias exists. See Mu'min v. Virginia, 500 U.S. 415, 427 (1991); , overruled on other grounds by . "his primary reliance on the judgment of the trial court makes good sense the Judge of that court sits in a locale where the publicity is said to have had its effect and brings to his [or her] evaluation . . . his [or her] own perception of the depth and extent of news stories that might influence a juror." Mu'min, 500 U.S. at 427.
{89} Imposing a rigid requirement of voir dire also places the party seeking a change of venue in "an unnecessarily awkward position":
Unless he exhausts all his peremptory challenges he cannot claim on appeal, in the absence of a specific showing of prejudice, that the jury was not impartial. Yet, convinced that he must go to trial because his motion for a venue change was at first denied and in all likelihood will not ultimately prevail, he may fail to use every peremptory challenge sensing that the jurors he has examined may be comparatively less biased than others who might be seated were his peremptory challenges exhausted.
2 LaFave & Israel, (supra) 22.2(a) (quoting Maine, 438 P.2d at 375-76). "It seems undesirable to use voir dire as the primary method of determining the character of the threat to trial fairness and at the same time make it the principal safeguard against such a threat if it exists." 1980 ABA Standards, supra 8-3.3; see also 1991 ABA Standards, (supra) 8-3.3 (noting that it is administratively preferable to resolve change of venue motion at earliest possible stage of proceedings).
{90} As the majority acknowledges, making voir dire such a determinative factor also is problematic because "to expect jurors to confess bias is not always a reliable practice." ; cf. State v. Ball, 34 N.M. 254, 280 P. 256 (1929) (affirming change of venue following mistrial in which juror failed to disclose bias in favor of defendant). In particular, the reliability of voir dire may be questioned where there is a lack of candor among prospective jurors, or where lawyers exploit voir dire as an opportunity to influence jurors by using leading questions to direct them toward a desired response. See 1991 ABA Standards, supra 8-3.5; Maine, 438 P.2d at 375-76; LaFave & Israel, supra 22.2(d), at 766; Friendly & Goldfarb, supra, at 103-04.
{91} When testimony of persons in the community at issue "is likely to be self-serving and no more reliable than qualified public opinion polls or the court's evaluation of community sentiment through judicial notice[,]" courts may determine whether there are grounds for a change of venue "without having to consider the testimony of persons . . . ." 1980 ABA Standards, (supra) 8-3.3. In addition, courts may consider opinion testimony to show local prejudice because "no witness can swear as a matter of fact, independent of his [or her] judgment, that so great a prejudice . . . exist in the minds of the inhabitants of a county . . . that an unbiased or unprejudiced jury . . . cannot be obtained therein . . . ." 21 Am. Jur. 2d 381. In the present case, the trial court could reasonably infer from the record that additional voir dire would be no more reliable than other sources then availabl
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