By Dr. Ken Broda-Bahm:
In a new law journal article, University of Kansas law professor Melanie Wilson asks us to consider a situation in which a stranger approaches us on the street and politely asks us whether we've ever been a victim of sexual assault or abuse, whether we've ever been investigated by the police, what we think about abortion, what our sexual orientation is, what we watch on television, and what political groups we support. Portraying voir dire as a similarly unexpected intrusion on jurors' private lives, the professor advocates a fundamental change to the selection process: a "juror peremptory strike" that would allow any member of a venire to opt out of invasive questioning by simply removing themselves from the case.
The motive behind the article in the current Utah Law Review (Wilson, 2012) is a good one: Jurors will not respect a process that they believe invades their privacy. But the proposed solution of jurors striking themselves could discourage legitimate questions about bias and create an easy opt out for potential jurors. The analogy notwithstanding, potential jurors are not strangers accosted on the street, they're participants in a legal role that is one of the duties of citizenship. Subject to a judge's review, members of the venire should answer questions that are reasonably calculated to reveal possible bias in the case. There are also many ways to ensure that voir dire serves its purpose without being an unwelcome intrusion. Questionnaires and in camera voir dire are ways to balance the parties' interests with the panelist's privacy. There are ways to question which are sensitive and effective, and there are ways to question which are clumsy and insulting. One implication of the article is that it helps to have someone on the team who specializes, not just in the law or in the art of advocacy, but in the task of eliciting important attitudes and experiences: a social scientist.