Earlier this month, the Supreme Court of Maryland approved the recommendation of the Maryland Judiciary's Standing Committee on Rules of Practice and Procedure (the “Rules Committee”) to adopt a provisional program that will allow attorneys to utilize more strategic tactics during jury selection and assemble jury panels in a way that, previously, Maryland courts have not allowed.
Currently, the vast majority of
state courts, as well as all federal courts, make it mandatory for trial judges
to ask voir dire questions proposed by parties if the questions will
lead to “the intelligent exercise of peremptory challenges.” Under this
approach, parties are allowed to ask probing questions during the voir dire
process to help the parties make a more informed decision about whether to
strike a prospective juror.
Maryland, by contrast, has
employed a “limited” voir dire process which provides the parties with limited
information about the potential jurors and relies heavily on prospective
jurors’ ability to assess their own biases. As the Supreme Court of Maryland
has explained, in Maryland, “‘the sole purpose of voir dire is to ensure a fair
and impartial jury by determining the existence of cause for disqualification,
and not as in many other states, to include the intelligent exercise of
peremptory challenges.’” Collins v.
State, 452 Md. 614, 622, 158 A.3d 553, 558 (2017) (citations and internal
quotation marks omitted). Unless a
proposed voir dire question is directed at a specific cause for juror
disqualification—meaning, the question is “reasonably likely” to uncover either
prospective juror's (1) failure to meet minimum statutory qualifications (e.g.,
age, felony convictions, etc.) or (2) inability to be impartial—then a trial
judge in Maryland is not required to ask the proposed question during voir
dire. Kazadi v. State, 467 Md. 1, 44-45, 223 A.3d 554 (2020)
(cleaned up); Pearson v. State, 437 Md. 350, 357, 86 A.3d 1232, 1235-36
(2014) (cleaned up). Put another way, trial judges in Maryland are routinely
allowed to reject proposed voir dire questions when such questions are
designed to probe and “fish” for information that will help the parties develop
a basis to disqualify a juror.
The newly approved pilot program
follows the majority approach to voir dire and will allow parties to
“use the examination of a prospective juror to obtain information that may
provide guidance for the informed exercise of peremptory challenges” in both
civil and criminal cases. Although the Rules Committee has recommended that
trial judges will still retain “supervision and control” of the voir dire process,
the program will allow attorneys to propose broader voir dire questions
that, historically, have been rejected by Maryland courts—questions designed to
probe for information that may ultimately aid in the informed “exercise of
peremptory challenges” of potential jurors. Pearson, 437 Md. at 357, 86
A.3d at 1235-36.
This pilot program comes shortly
after the 2024 Maryland General Assembly raised concerns about Maryland's
voir dire process, nearly taking control of the issue after the Senate
voted to codify changes to the voir dire process. On April 11, 2024,
following the state legislature's attempt to modify the voir dire process,
Chief Justice Fader requested that the Rules Committee—the body that was
specially created to help Maryland's highest Court in the exercise of its
rulemaking authority—expeditiously explore and recommend changes to the voir
dire rules. Consequently, the Rules Committee held meetings in May and June
2024, allowing comment from advocates in favor of the majority approach to
voir dire and those in favor of Maryland's “limited” voir dire. Ultimately, in June 2024, the Rules Committee
voted to expand the voir dire process on an experimental basis, and, in
September 2024, the Supreme Court of Maryland approved the committee's
recommendation.
Currently, the Rules Committee
has not published the full scope or parameters of the pilot program. However,
according to Chief Justice Fader, the program will cover a “representative
sample of circuit courts across the state” and is expected to last until the
end of 2025. Only time will tell whether or not the program will be adopted on
a permanent basis and/or applied statewide, bringing Maryland into alignment
with the vast majority of other states, as well as the federal courts.
Link to Article: https://thedailyrecord.com/2024/09/13/md-supreme-court-approves-pilot-to-expand-lawyers-role-in-voir-dire/
Link to June 2024 Rules Committee Meeting: https://www.mdcourts.gov/sites/default/files/import/rules/agenda/agenda.pdf
2024 Maryland General Assembly Bills
·
Senate Bill 827 (Policy Note): https://mgaleg.maryland.gov/2024RS/fnotes/bil_0007/sb0827.pdf
·
House Bill 1079 (Policy Note): https://mgaleg.maryland.gov/2024RS/fnotes/bil_0009/hb1079.pdf
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