Print Version
Previous PageFile uploaded: 1/24/2019
Advisory Committee Note: Paragraph (b) The preliminary statement of thecase does not serve the same purpose as the opening st

URCrP 18

Advisory Committee Notes

Paragraph (b) The preliminary statement of the case does notserve the same purpose as the opening statement presented after the jury isselected. The preliminary statement of the case serves only to provide a briefcontext in which the jurors might more knowledgeably answer questions duringvoir dire. A preliminary opening statement is not required and may serve nouseful purpose in short trials or trials with relatively simple issues. Thejudge should be particularly attuned to prevent argument or posturing at thisearly stage of the trial.

Paragraph (e)(14). The Utah Supreme Court has noted atendency of trial court judges to rule against a challenge for cause in theface of legitimate questions about a juror's biases. The Supreme Court limitedthe following admonition to capital cases, but it is a sound philosophy even intrials of lesser consequence.

[W]e take this opportunity to address an issue of growingconcern to this court. We are perplexed by the trial courts' frequentinsistence on passing jurors for cause in death penalty cases when legitimateconcerns about their suitability have been raised during voir dire. While theabuse-of-discretion standard of review affords trial courts wide latitude inmaking their for-cause determinations, we are troubled by their tendency to"push the edge of the envelope," especially when capital voir dire panels areso large and the death penalty is at issue. Moreover, capital cases areextremely costly, in terms of both time and money. Passing questionable jurorsincreases the drain on the state's resources and jeopardizes an otherwise validconviction and/or sentence. ... If a party raises legitimate questions as to apotential juror's beliefs, biases, or physical ability to serve, the potentialjuror should be struck for cause, even where it would not be legally erroneousto refuse. State v. Carter, 888 P.2d 629 (Utah 1995).

In determining challenges for cause, the task of the judgeis to find the proper balance. It is not the judge's duty to seat a jury from atoo-small venire panel or to seat a jury as quickly as possible. Althoughthorough questioning of a juror to determine the existence, nature and extentof a bias is appropriate, it is not the judge's duty to extract the "right"answer from or to "rehabilitate" a juror. The judge should accept honestanswers to understood questions and, based on that evidence, make the sometimesdifficult decision to seat only those jurors the judge is convinced will actfairly and impartially. This higher duty demands a sufficient venire panel andsufficient voir dire. The trial court judge enjoys considerable discretion inlimiting voir dire when there is no apparent link between a question andpotential bias, but "when proposed voir dire questions go directly to theexistence of an actual bias, that discretion disappears. The trial court mustallow such inquiries." The court should ensure the parties have a meaningfulopportunity to explore grounds for challenges for cause and to ask follow-up questions,either through direct questioning or questioning by the court.

The objective of a challenge for cause is to remove from thevenire panel persons who cannot act impartially in deliberating upon a verdict.The lack of impartiality may be due to some bias for or against one of theparties; it may be due to an opinion about the subject matter of the action orabout the action itself. The civil rules of procedure have a few - and thecriminal rules many more - specific circumstances, usually a relationship witha party or a circumstance of the juror, from which the bias of the juror isinferred. In addition to these enumerated grounds for a challenge for cause,both the civil rules and the criminal rules close with the following grounds:formulation by the juror of a state of mind that will prevent the juror fromacting impartially. However, the rules go on to provide that no person shall bedisqualified as a juror by reason of having formed an opinion upon the matterif it satisfactorily appears to the court that the person will, notwithstandingthat opinion, act impartially.

The amendments focus on the "state of mind" clause. Indetermining whether a person can act impartially, the court should focus notonly on that person's state of mind but should consider the totality of thecircumstances. These circumstances might include the experiences, conduct,statements, opinions, or associations of the juror. Rather than determiningthat the juror is "prevented" from acting impartially, the court should determinewhether the juror "is not likely to act impartially." These amendments conformto the directive of the Supreme Court: If there is a legitimate question aboutthe ability of a person to act impartially, the court should remove that personfrom the panel.

There is no need to modify this determination with thestatement that a juror who can set aside an opinion based on public journals,rumors or common notoriety and act impartially should not be struck. Havingread or heard of the matter and even having an opinion about the matter do notmeet the standard of the rule. Well-informed and involved citizens are notautomatically to be disqualified from jury service. Sound public policysupports knowledgeable, involved citizens as jurors. The challenge for thecourt is to evaluate the impact of this extra-judicial information on theability of the person to act impartially. Information and opinions about thecase remain relevant to but not determinative of the question: "Will the personbe a fair and impartial juror?"

In stating that no person may serve as a juror unless thejudge is "convinced" the juror will act impartially, the Committee uses theterm "convinced" advisedly. The term is not intended to suggest the applicationof a clear and convincing standard of proof in determining juror impartiality,such a high standard being contrary to the Committee's objectives. Nor is theterm intended to undermine the long-held presumption that potential jurors whosatisfy the basic requirements imposed by statutes and rules are qualified toserve. Rather, the term is intended to encourage the trial judge to be thoroughand deliberative in evaluating challenges for cause. Although not anevidentiary standard at all, the term "convinced" implies a high standard forjudicial decision-making. Review of the decision should remain limited to anabuse of discretion.

This new standard for challenges for cause represents abalance more easily stated than achieved. These amendments encourage judges toexercise greater care in evaluating challenges for cause and to resolvelegitimate doubts in favor of removal. This may mean some jurors now removed byperemptory challenge will be removed instead for cause. It may also mean thecourt will have to summon more prospective jurors for voir dire. Whetherlawyers will use fewer peremptory challenges will have to await the judgment ofexperience.