Judge's Critical Role in Voir Dire
Selecting a jury for a marital rape trial, an intimate partner sexual abuse trial, or a trial of co-occurring intimate partner sexual abuse and battering presents many challenges. Juror bias in these types of cases, based on jurors' personal experiences and expectations and the widespread misconceptions about sexual assault, domestic violence and intimate partner sexual abuse, is well documented.
Judges often struggle with how much to allow in voir dire. Moreover, in most jurisdictions voir dire is the province of litigants’ attorneys, and judges are reluctant to usurp that role. Nonetheless, anyone who has spent time conducting jury trials knows that jurors’ biases are rarely discovered in traditional, truncated voir dire. Allowing the time necessary to identify these biases in intimate partner sexual abuse trials is essential. Voir dire is an opportunity for the court to see that the playing field is leveled. Ensuring that an intimate partner sexual abuse case is not decided on the basis of jurors’ belief in rape myths should be a concern of the court, not just the position of one party. Judges can establish with the attorneys before voir dire begins the questions essential to seating an unbiased jury. Whether or not that discussion precedes voir dire, if the judge sees that the questions essential to fairness are not being asked, the judge can require the attorneys to ask them, or do so him or herself.