In voir dire, I want to ask prospective jurors their attitudes or feelings about certain fundamental facts in the case, i.e. anticipated evidence. I need to know whether a juror has some inherent “belief” based attitude that will prevent him from fairly hearing the plaintiff’s evidence. However, for many years trial lawyers often engaged in “indoctrination” tactics during voir dire. These tactics were attempts to pre-try the case in voir dire. This led to appellate decisions prohibiting lawyers from arguing anticipated facts or law during voir dire. See, e.g. Osborne v. Leonard, 99 Ill.App.2d 391(1st D. 1968)(indoctrination prohibited); Christian v. New York Central R.R. Co, 28 Ill.App.2d 57(4th D. 1960) I believe that the indoctrination objection is overused. In Illinois, as will be discussed below, the trial lawyer can ask voir dire questions based on non-argumentative anticipated evidence(facts) to discover a prospective juror’s attitudes.
A question to a prospective juror which contains anticipated evidence is proper; provided, however, that it is not framed as an argumentative hypothetical which then asked the juror to judge the case. People v. Pineda, 349 Ill.App.3d 815, 819(2nd D. 2004)(trial judge does not abuse his discretion allowing questions based on anticipated evidence; People v. Bell, 157 Ill.App.3d 1007, 1017(3rd D. 1987)(improper to obtain a juror’s pledge as to how they would decide a under a hypothetical state of facts) Indeed, the deferential abuse of discretion standard that applies to voir dire does not mandate that a trial judge automatically bar questions about evidence that will be offered at trial under past case law. Pineda, at 819
For example, in Grossman v. Gebarowski, 315 Ill.App.3d 213, 222(1st d. 2000), the court approved anticipated evidence questions which were “sufficient…to identify jurors entertaining a bias against a pedestrian(plaintiff) who crosses a street at a place other than an intersection or marked crosswalk.” Similarly, asking jurors whether testimony about “alcohol and drugs” would affect their ability to be a a juror in the case was allowed. People v. Lanter, 230 Ill.App.3d 72, 73(4th d. 1992)
The bottom line, under Illinois law, is that you should not be afraid to ask voir dire questions that attempt to discover a prospective juror’s attitudes or feeling about worrisome anticipated evidence.
