History of Voir Dire

THE HISTORICAL PERSPECTIVE OF JURY SELECTION

I have written a couple of columns in the past about some of the procedures associated with jury selection (voir dire) and the importance of jury service.  However, I have found that one of most interesting aspects of the voir dire process is found in the early historical record of our country. 

The word “voir dire” is a Latin term that means “speak the truth”.  In Georgia, juries are actually de-selected rather than selected by each side striking potential jurors from a case.  Each side usually has a good idea which jurors need to be removed from a case based on the answers that the jurors give during the voir dire process.  Today, voir dire is as much a fundamental American tradition as the right for a defendant to be presumed innocent in a criminal case until proven guilty beyond a reasonable doubt.  Without voir dire, the prosecution and defense would not be in a position to assist the court in developing the best jury for a particular case.  Thus, you could not actually have a trial by jury under such circumstances. 

Well, how did voir dire become such a fundamental American tradition?  As the United States was beginning to consider independence, England enacted the Massachusetts Jury Selection Law of 1760, which prohibited the questioning of jurors once the sheriff had chosen them for duty.  The inability of both parties to explore the views of potential jurors angered the citizenry and actually served as one of many justifications for independence. 

When our Founders drafted and signed the Declaration of Independence, one of the main justifications for breaking away from England was King George III’s depriving the colonists the right to be tried by a jury.  This continued denial of such a fundamental right based on natural law helped to spark the Revolution.

By the time the United States of America had come into being, voir dire had become a foundation of American jurisprudence.  One of the first legal cases addressing the importance of voir dire and cementing the right of parties to question juries about their preconceptions about a case was the treason prosecution of Aaron Burr.  In United States v. Burr (1807), Chief Justice John Marshall, while sitting as the trial judge, recognized that an impartial jury was required by the common law and secured by the Constitution.  This case put the world on notice that the United States was serious about protecting constitutional rights. 

Since the early 1800's, The United States Supreme Court has consistently recognized the importance of the voir dire process.  Case after case has held that the Constitution, particularly the 6th Amendment, recognizes the right to a trial by jury.  The prevailing view in legal circles today is that voir dire is the key tool for protecting an individual’s right to an impartial jury. 

Thomas Jefferson, perhaps the most courageous of our Founding Fathers, was quoted as saying “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”  It seems that Jefferson understood that holding government to its foundational, enumerated, and very limited principles is an ongoing process. I hope that a larger percentage of Americans will begin to understand why Thomas Jefferson felt this way.