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Uniformity in court standards and procedures levels the playing field for judges, lawyers, litigants and juries. MSBA has always pursued consistency and uniformity in judicial policies to enable Maryland lawyers to practice law more efficiently and serve their clients more effectively. Just last year, MSBA successfully urged the Court of Appeals of Maryland to approve a uniform statewide court cell phone policy permitting attorneys to bring electronic devices into all state courthouses, which took effect on January 1, 2011.
For decades, MSBA has produced pattern jury instructions for civil and criminal trials to engender uniformity in the instructions judges give to juries before they begin their deliberations. MSBA is now seeking uniformity in voir dire and is exploring the development of model voir dire instructions in civil and criminal trials in Maryland. MSBA’s President, Henry E. Dugan, Jr., plans to address the limitations surrounding voir dire in the state through a new MSBA Committee on Voir Dire.
In the judicial process of voir dire, lawyers ask jury panels questions designed to elicit certain responses from the jurors. These replies are critical because they serve as the foundation for lawyers to determine whether these jurors will be fair and impartial. Moreover, the juror responses disclose those individuals who may have strong opinions on matters relating to the case. But in Maryland voir dire is quite limited.
“Right now, attorneys give the judge potential voir dire questions and the judge chooses whether or not to ask the jury the questions,” explains Dugan. “In numerous jurisdictions, the attorneys themselves are allowed to address the jury to elicit responses, but in Maryland it is the court’s sound discretion as to what questions judges will or will not ask. Maryland does not have the extensive interactive voir dire that exists in other jurisdictions.”
“Maryland seems to be totally lacking in uniformity. It has been the experience of many trial attorneys in the state that judges are ‘all over the field’ in terms of which questions they will or will not allow,” continues Dugan. The President stresses the importance of obtaining a “level playing field” at trial. “The jury is the playing field.”
To address this dilemma, MSBA is establishing a new Committee on Voir Dire, chaired by Paul Mark Sandler, to develop uniform model voir dire instructions which will parallel those the Association has for model jury instructions. This Committee “will look at as many areas of the law as possible where voir dire instructions will apply and come up with model questions, much like the model jury instructions,” adds Dugan, who anticipates different voir dire instructions for different voir dire situations.
“In many cases, Maryland courts have ruled that particular proposed questions should be asked to prospective jurors,” reports Sandler, “but there is little uniformity regarding many types of questions that could be asked. Our new Committee will work to develop standard voir dire questions to be proposed by counsel in appropriate trials and standard questions for jury questionnaires. It will also present particular voir dire questions that have been accepted by courts throughout the United States as recommended questions.”
"Lawyers need to go into court knowing voir dire questions have been vetted by a cross-section of the Bar and that this group feels the questions are fair,” adds Dugan. In this way “Maryland judges will be more likely to ask the voir dire questions.” Prior to MSBA drafting the pattern jury instructions, the same situation arose, where “some judges would ask them, some judges would let the lawyer tailor them and some judges would only allow very general statements.”
Now, there is uniformity with respect to jury instructions in Maryland and “most judges go with them because they are safe and consistent,” declares Dugan. This has expedited the process for jury instructions, reports MSBA’s President, who now seeks uniformity in voir dire. “Model voir dire instructions should expedite the process and generate a fair playing field in trial proceedings.”
Dugan believes these model instructions will benefit everyone. “They are a fair way to determine whether a fair playing field exists. They will help attorneys zero in on the issues for their cases and help judges by giving them a safe harbor. They will give judges the questions they feel comfortable asking and help them make the playing field even.”
Sandler hopes the committee will be able to help the Bench and Bar in the selection of the best jury for the case. Dugan is now in the process of organizing the new MSBA Voir Dire Committee. Once it is in place, Committee members will discuss the potential of two panels, one devoted to criminal trials and the other dedicated to civil ones.
Members interested in this Committee should contact MSBA Executive Paul V. Carlin at pcarlin@msba.org.
