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Law Practice,
Appellate Practice

Dec. 16, 2022

Leading questions and cause challenges

Code of Civil Procedure sections 225 and 229 specify grounds for a cause challenge based upon bias, either implied or actual. It comes down to a question of impartiality – can the juror be fair to both sides?

Spring Street Courthouse

Lawrence P. Riff

Judge, Los Angeles County Superior Court

The trial lawyer was perplexed. The judge denied a cause challenge to the potential juror yet that juror had just said, the lawyer insisted, that she could not be fair. For heaven's sake, the lawyer exclaimed, the potential juror just said "plaintiff starts a little behind the defense at the start of the race" and then she said, "plaintiff may need to do a little more to get out of a hole, back to neutral ground." Counsel's perplexity is the mirror image of the debate five minutes earlier when a different potential juror said that "corporations put profits ahead of safety most of the time." "Yeah," he allowed, "that factor may favor the plaintiff at this point and, yeah, to that extent right now, both parties are probably not starting from the same place."

But did the potential jurors really say those things? Or did they simply agree with expertly crafted leading questions by seasoned counsel, many minutes into an intensive voir dire interrogation? Did they agree with the explicit for-cause bias conclusion embedded in the questions because they really meant it or because they were simply capitulating to a stream of leading questions that would end, seemingly, only when they finally acceded? What about the juror questionnaire on which the same series of questions were posed and the potential jurors had stated (under oath) that, yes, they could indeed be fair to both sides? And what about the overall calm and pleasant tone and demeanor of the potential juror which became increasingly nerve-wracked and emotional the more leading questions about bias were put to him?

Thus, despite the potential juror's eventually agreeing to a highly leading "start in a slight hole" question, a judge might deny the cause challenge. See, People v. Thompson (2010) 49 Cal.4th 79, 100; People v. Henderson (2021) 68 Cal.App.5th 709, 724 (reviewing court will uphold the trial judge's decision if it is fairly supported by the record and accept as binding the judge's determination of a prospective juror's true state of mind when the juror has given conflicting or ambiguous responses.)

Trial lawyers know well that jury deselection is among the most important aspects of any trial. Many say they can't truly evaluate their case until they see their sworn panel. Good trial lawyers tell the venire "all we are looking for is a collection of open-minded people to listen to the evidence and help the parties resolve their dispute" - and by and large the lawyers mean it. Sure, they may strive for jurors whose predispositions and attitudes, in the ultimate scrum of deliberations, may favor their theory of the case. But just finding fair and open-minded folks for a particular controversy is challenging enough, most lawyers would say.

The fundamental engagement of jury deselection revolves around the difference between peremptory and cause challenges. There is a fixed number of "pretty-much-for-any-reason" (except Batson/Wheeler) peremptory challenges, but no fixed number for matter-of-law cause challenges. Thus, counsel seeking to reach and to empanel jurors they believe will be fair and open-minded, but who are buried deep into the venire, has a strong incentive to preserve the valuable peremptory challenges and instead to "ding" a potential juror for cause if possible. The cause challenge is free whereas spending a peremptory is to part with a thing of value an economist might note.

Code of Civil Procedure sections 225 and 229 specify grounds for a cause challenge based upon bias, either implied or actual. It comes down to a question of impartiality - can the juror be fair to both sides? There are potential jurors for whom the answer is clearly "no" and they need to be identified and excused. Often they self-identify with enthusiasm, either in good faith or otherwise, recognizing that playing the "I-can't-possibly-be-fair" card provides the nearest exit ramp from the courtroom. No leading questions are necessary for them.

What about the potential jurors who indeed harbor disqualifying biases and prejudices but, for wholly understandable reasons, do not choose to readily so admit before a group of strangers? These otherwise well-intentioned citizens may need some prodding, via a leading question or two, during voir dire to disclose an uncomfortable truth. This is fine but should be handled with grace, finesse and respect.

I say in a perfect world voir dire should be conducted with non-leading questions. After all, "[c]hallenges for cause shall be tried by the court. The juror challenged may be examined as a witness in the trial..." Code of Civil Procedure section 230. Thus, the finder of fact in the situation - the trial judge - will likely be most persuaded if the facts flow freely from the mouth of the potential juror, not in a conclusory leading question by counsel. This is not an observation unique to jury selection; it applies to any form of trial advocacy. Moreover, our general notions of the use of leading questions suggest that their use is best when there is some degree of adversity between the questioner and witness. There is, or theoretically should be, no such adversity among trial counsel and trial jurors in voir dire who, after all, are simply solid citizens responding to a jury summons.

But yet again, the genius of the law is not logic but experience, and experience shows that sometimes leading questions in voir dire are not only acceptable but necessary. There is nothing normal about the experience of voir dire for most potential jurors. For many, English is a second language and expressing concepts like "hardship," "predisposition," "bias," "feather on a scale," "start in a hole" and the like do not come easily. There is performance anxiety which can complicate fluidity of expression. So, yes, after the open-ended, non-leading question does not result in meaningful communication, a courteous, respectful leading question from counsel may help a potential juror put into words her true feelings. Also, a leading question may help explain a material inconsistency between sentiments expressed on the questionnaire and those expressed earlier in voir dire. Gracious and well-mannered leading questions for these reasons are consistent with the truth-finding function of trials.

My premise, therefore, is modest: open-ended, non-leading questions on voir dire which leads a potential juror to express his feelings easily and freely are likely to be most persuasive to the trial judge determining cause challenges. Sometimes, a leading question may be useful to help the juror express her true feelings or help explore an important inconsistency. But a loaded up, cram-down leading question, even if ultimately adopted by the potential juror, may not prove to be persuasive to the finder of fact and may explain why a cause challenge was denied.

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