New Hampshire Court Supports Voir Dire

Posted on Tuesday, July 1st, 2014 at 1:00 am    

While affirming a verdict for the defendant in a slip-and-fall case, the New Hampshire Supreme Court reinforced the principle that parties in that state’s courts are entitled to a reasonable opportunity to select a fair and impartial jury.  The Court’s decision in Dukette v. Brazas held that, while the plaintiff had not properly preserved her claims of error, the jury selection procedures followed by the Superior Court were less than optimal, and in some ways, apparently not compliant with state law.

In 2010, New Hampshire joined the vast majority of states in permitting so-called “lawyer-conducted voir dire“–an opportunity for lawyers to speak directly to the panel of prospective jurors and to ask questions to elicit any bias or pre-conceived notions that might make a juror unsuitable to sit on the particular case.  Widely recognized by lawyers and commentators as crucial to the selection of a truly impartial jury, this type of voir dire has long been the standard in virtually every state–Massachusetts remaining a notable exception.  The New Hampshire statute implementing voir dire, RSA 500-A:12-a, permits counsel to address the prospective jurors to describe the claims, defenses and other issues in the case, as well to question individual jurors about their possible prejudices.

However, the trial judge in Dukette, apparently not a fan of the new law, issued an order requiring counsel to submit proposed voir dire questions in advance, and directing that the questions be posed to the jurors individually at the side bar, out of the hearing of other jurors.  Plaintiff’s counsel appealed to the Supreme Court even before the trial started, successfully obtaining an opinion that the questions need not be submitted before trial.  The Supreme Court declined to address any other issues at that time.

After a defense verdict, the plaintiff again appealed, claiming it was error for the trial court to refuse him an opportunity to address the entire panel to summarize the case and the issues, and again asserting his right to question the entire panel as a group.  Holding that the plaintiff had not properly preserved the issues for appeal, the Supreme Court nevertheless decided to “take this opportunity to remind trial judges to comply with the requirements established by the legislature when conducting jury voir dire.”  In essence, the Court agreed with the plaintiff’s lawyer that he should have been permitted to speak to the entire panel as a group.

In a separate concurring opinion, Justice Carol Conboy agreed with the plaintiff that her lawyer should have been permitted to question the jurors as a large group, arguing that that process, which the majority conceded was permitted by the statute–would be both more effective and more efficient than the process employed by the trial judge.

Read the New Hampshire Supreme Court’s decision in Dukette v. Brazas here.