223.3Jury Selection

Questioning Prospective Jurors - Generally

The purpose of jury voir dire is to enable both the prosecutor and defense attorney to determine the impartiality of prospective jurors. Voir dire is used to determine whether grounds exist for disqualifying a juror for cause due to lack of competency, fitness, or ability to be fair and impartial. It also enables attorneys to become acquainted with the prospective jurors so they can intelligently exercise the peremptory challenges allowed by law. See G.S. 9-15(a); G.S. 15A-1214(c); State v. Allred, 275 N.C. 554 (1969). The court likewise has the right to inquire into the fitness or competency of a juror. State v. Bryant, 282 N.C. 92 (1972).

The manner and extent of questions allowed in examining jurors is primarily a matter of the trial judge’s discretion and, therefore, varies widely among judges. See G.S. 9-14 and 15; 15A-1211 to 1217; State v. Smith, 328 N.C. 99 (1991). For example, it is the trial judge’s prerogative to expedite jury selection by requiring that certain general questions be submitted to the jury panel as a whole. See State v. Phillips, 300 N.C. 678, 682 (1980) (“Questions should be asked collectively of the entire panel whenever possible”); State v. Harris, 323 N.C. 112 (1988). However, G.S. 15A-1214(c) makes clear that attorneys are not prohibited from asking questions which may have already been covered by the judge. State v. Jones, 336 N.C. 490 (1994) (trial judge erred in preventing defense counsel from asking jurors questions solely because judge had previously asked same or similar questions).

Counsel should not argue the case in any way while questioning the jurors. Phillips, supra.at 682 (1980). Counsel should not “fish” for answers to legal questions before the judge has instructed the jury on applicable legal principles. Further, counsel should not engage in efforts to indoctrinate, visit with, or establish rapport with jurors. Id. Failure to object to a particular question asked of a prospective juror results in a waiver of right to object. 

Proper Subjects for Voir Dire

1. Prior jury service in another case.

See G.S. 9-3 (to be eligible, jurors must “have not served as jurors during the preceding two years or who have not served a full term of service as grand jurors during the preceding six years”); State v. Berry, 35 N.C. App. 128 (1978) (“it is actual service as a juror rather than a mere summons for jury duty which disqualifies him for service for the next two years”)

2. Acquaintance, friendship with, or bad feelings toward defendant, attorneys, and witnesses.

See State v. Allred, 275 N.C. 554 (1969) (upholding state’s challenge for cause based on relationship within ninth degree of kinship between juror and witness); State v. Poole, 25 N.C. App. 715 (1975) (voir dire revealed that “several jurors either knew the solicitor or a witness, or were related to people in the field of law enforcement” – counsel had ample opportunity to challenge, trial court properly declined to dismiss); State v. Watson, 281 N.C. 221 (1972) (juror is not disqualified solely because he or she is related to counsel involved in the case); State v. Exum, 128 N.C. App. 647 (1998) (trial judge did not abuse discretion in excusing for cause prospective juror who was defense counsel’s brother-in-law).

3. Membership in various organizations whose attitudes and activities might influence the juror’s impartiality.

See State v. Davis, 325 N.C. 607 (1989) (court may properly excuse juror because of a juror’s religious views if those views cause an inability to follow the law – e.g., teachings of Catholic Church made juror unable to consider imposition of death penalty); but see State v. Anderson, 350 N.C. 152 (1999) (impermissible questions concerned jurors’ church memberships and whether the churches’ members ever expressed opinions about the death penalty - instead of questions relating to the jurors’ own religious beliefs, the impermissible questions concerned their affiliations and beliefs espoused by others in their churches).

4. Personal opinions or predispositions affecting impartiality, and whether juror has relevant bias or prejudice.

See State v. Anderson, 350 N.C. 152 (1999) (state properly permitted to ask prospective jurors, “Would the fact that the defendant is a female in any way affect your deliberations with regard to the death penalty?” - not an improper hypothetical or stakeout question); State v. Porter, 326 N.C. 489 (1990) (questions about jurors’ perceptions of racism in criminal justice system, at a time when racial tensions in community were “particularly high,” were permissible to determine whether perceptions of trial process would affect ability to render fair verdict); State v. McKoy, 323 N.C. 1 (1988) (state may ask if evidence shows defendant was intoxicated at time of crime, would juror have sympathy for defendant and allow that sympathy to influence verdict); State v. Williams, 41 N.C. App. 287 (1979) (trial judge properly allowed prosecutor to inform jurors that case involved a proposed sale of marijuana, and to ask whether any of them would be unable to be fair and impartial for that reason—question did not attempt to “stake out” jurors).

5. Inability or refusal to follow court’s instructions or the law as explained by the judge.

See State v. Clark, 319 N.C. 215 (1987) (proper to allow prosecutor to ask whether absence of eyewitnesses and state’s reliance on circumstantial evidence would cause jurors any “problems”); State v. Hedgepeth, 66 N.C. App. 390 (1984) (trial judge’s refusal to allow questions concerning jurors’ willingness and ability to follow the judge’s instructions was error).

6. Special knowledge or expertise of juror.

See State v. Cummings, 361 N.C. 438 (2007) (prospective juror who worked as a homicide detective was properly questioned about his investigative experience and his views on mental illness and mitigating circumstances); but see State v. Mash, 328 N.C. 61 (1991) (counsel properly prohibited from asking potential jurors about their own personal experiences with alcohol and any difficulties they would have in considering mental health expert testimony). 

7. Physical disability (e.g., deafness, poor eyesight, illness) that would disqualify juror from service or affect desire to serve.

See State v. King, 311 N.C. 603 (1984) (no error where court declined to excuse for cause a prospective juror with a partial hearing impairment); State v. Oliver, 302 N.C. 28 (1981) (similar ruling regarding a 65 year-old juror who disclosed a history of heart trouble).

8. Whether mandatory punishment would affect impartiality.

See State v. Kennedy, 320 N.C. 20 (1987) (prosecutor properly permitted to ask if “you are satisfied at the conclusion of the evidence in this case that the defendant is guilty beyond a reasonable doubt, would the punishment imposed, a mandatory life sentence, prevent you” from returning the verdict of guilty?).

Improper Subjects for Voir Dire

1. Incorrect or confusing statements of the facts or law.

See State v. Vinson, 287 N.C. 326, 336 (1975) (hypothetical questions phrased in ambiguous and confusing manner, or containing incorrect or inadequate statements of the law, are improper and should not be allowed); State v. Bryant, 282 N.C. 92 (1972) (improper to ask jurors if after hearing “the evidence you thought defendant was probably guilty and if you were not convinced absolutely that he was not guilty, would you” be able to return a verdict of not guilty); State v. Wood, 20 N.C. App. 267 (1973) (improper to ask if juror should have “one single reasonable doubt” would juror vote to find the defendant not guilty).

2. Hypothetical, confusing, or “stake out” questions, and questions designed to indoctrinate or influence prospective juror.

See State v. Richmond, 347 N.C. 412 (1998) (judge properly denied stakeout question to jurors that if they knew that defendant had previously been convicted of first-degree murder, would they still be able to consider mitigating circumstances and impose life sentence); State v. Mash, 328 N.C. 61 (1991) (defendant not entitled to question potential jurors about jurors’ “difficulty” in considering expert mental health testimony and jurors’ personal experiences with alcohol); State v. Price, 326 N.C. 56 (1990) (capital murder defendant not permitted to inquire about whether potential juror would require evidence of additional aggravating circumstance before juror could vote to impose death penalty); State v. Vinson, 287 N.C. 326, 336 (1975) (counsel may not ask hypothetical questions designed to elicit in advance what the juror’s decision will be under a certain state of the evidence or upon a given state of facts).

3. Questions about unrelated cases or crimes.

See State v. Payne, 328 N.C. 377 (1991) (prosecutor’s reference during jury voir dire to certain aggravating circumstances on which state did not ultimately rely was error—but harmless); State v. Washington, 283 N.C. 175 (1973) (improper to ask if juror: (i) would consider evidence that others convicted of rape had been executed and some had not; (ii) would consider evidence that there was any rational basis for separating those who died from those who were allowed to live for a conviction for the same crime).

4. Verdict inquiry, prediction, or “pledge."

See State v. Vinson, 287 N.C. 326, 336 (1975) (court “should not permit counsel to question prospective jurors as to the kind of verdict they would render, or how they would be inclined to vote” under a given set of facts); State v. Bracey, 303 N.C. 112 (1981) (improper to ask if “seeing the other eleven members of the jury panel vote for acquittal” would cause juror to change opinion); State v. Bryant, 282 N.C. 92 (1972) and State v. Briggs, 20 N.C. App. 61 (1974) (improper to ask if jurors would be able to return a verdict of not guilty if they thought defendant was probably guilty); State v. Hunt, 37 N.C. App. 315 (1978) (improper to ask if juror was firmly convinced defendant was not guilty, would juror permit anything to change mind or influence decision as to how to vote).

5. Opinion as to defendant’s guilt or innocence.

See G.S. 15A-1212(6) (juror may be excused for cause if he or she has already formed or expressed an opinion as to defendant’s guilt or innocence – however, the parties may not inquire whether that opinion is favorable or adverse to the defendant); State v. Zigler, 42 N.C. App. 148 (1979) (improper to ask if juror has formed an opinion whether defendant is guilty).

6. Opinions about fairness or efficacy of judicial system.

See State v. Hopper, 292 N.C. 580 (1977) (improper to ask jurors about opinion of state court system or if they believe justice is done); State v. Brown, 315 N.C. 40 (1985) (improper to ask about jurors’ beliefs regarding the likelihood that the state would carry out execution).

7. Issues that might not be raised at trial.

See State v. Brown, 327 N.C. 1 (1990) (defendant was allowed to ask if anyone on panel felt that defense should not question police procedures, but trial court properly sustained objections to further questions about whether jurors were comfortable that defense might question police procedure during trial); State v. Washington, 283 N.C. 175 (1973) (improper to ask if juror would “consider, if you had the opportunity, evidence about this defendant, either good or bad, other than that arising from the incident here”); State v. Boykin, 291 N.C. 264 (1976) (improper to ask if any jurors have heard rumors about the defendant); State v. Vinson, 287 N.C. 326 (1975) (improper to ask if there are any circumstances or set of facts which would mitigate juror’s views on a particular crime or punishment).

Pretrial Publicity and Sequestered Voir Dire

Due process requires that the accused receive a fair trial by an impartial jury, free from outside influences. State v. Boykin, 291 N.C. 264 (1976) (holding that word-of-mouth publicity did not entitle defendant to change of venue or special venire where potential jurors stated that they could give defendant a fair trial). Therefore, the parties may inquire into prospective jurors’ exposure to pre-trial publicity and advance knowledge of the facts of the case to determine whether the jurors have been prejudiced by that exposure. See State v. Moore, 335 N.C. 567 (1994); State v. Atkins, 349 N.C. 62 (1998).

But a juror is not automatically barred from serving just because he or she has been exposed to pretrial publicity about the case, as long as the juror is able to follow the judge’s instructions on the law and decide the case based solely on the evidence presented at trial. See State v. Jaynes, 342 N.C. 249 (1995) (no error in denying challenge for cause where prospective juror acknowledged he had seen news accounts about the murder and formed an opinion that defendant was likely guilty, but also said he could be “totally objective” and render a fair and impartial verdict).

The defendant has the burden to show that prejudice prevented defendant from receiving a fair trial. State v. See, 301 N.C. 388 (1980). When a defendant alleges prejudice based on pretrial publicity, but does not show that he or she used all peremptory challenges, or that the particular jurors selected were actually objectionable or had prior knowledge of the case, the defendant has failed to carry the burden of showing the prejudicial effect of pretrial publicity. State v. Harrill, 289 N.C. 186 (1976); State v. Harding, 291 N.C. 223 (1976). See also Mu’Min v. Virginia, 500 U.S. 415 (1991) (no error where trial judge questioned prospective jurors about their knowledge of the homicide and, if they admitted knowledge, whether they could be fair and impartial, but declined to specifically inquire into the contentof their knowledge); Skilling v. United States, 130 S. Ct. 2896 (2010) (no actual prejudice demonstrated in case where judge denied motion to change venue due to size of community, nature of news stories, and lapse of time, as evidenced by acquittal on some counts).

In capital cases, the trial judge has the discretion to order, for good cause shown, that jurors be examined and selected individually while all other prospective jurors are sequestered. G.S. 15A-1214(j). This allows the parties to conduct an adequate inquiry into the scope of the prospective juror’s exposure to media reports about the case without tainting the rest of the jury pool. See State v. Sexton, 336 N.C. 321 (1994) (no abuse of discretion where court declined to order individual voir dire of jurors who reported they had heard media accounts of the case); State v. Jerrett, 309 N.C. 239 (1983) (finding prejudicial error where multiple jurors had advance knowledge of the parties and issues, and voir dire was conducted collectively and openly allowing other prospective jurors to learn of the matters raised during questioning); State v. Jackson, 309 N.C. 26 (1983) (“Whether to allow sequestration and individual voirdireof prospective jurorsis a matter for the trial court's discretion”).

For additional information regarding pretrial publicity and possible prejudice, see the related entry on Venue – Challenges & Motions to Change.