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Judge can’t use voir dire answers to gauge jury knowledge

Answers that prospective jurors offer while being questioned during the voir dire process can reveal potential biases or hang-ups that might make them unfit to serve on a jury. But trial judges should never use those answers to gauge the jury’s knowledge about a particular subject, the South Carolina Supreme Court has ruled.

The July 5 decision probably came as a surprise to some judges at the state Court of Appeals, which had reached an opposite conclusion at least twice—first in State v. Damon Brown and then again in State v. Roy Lee Jones. Court of Appeals Judge H. Bruce Williams wrote both opinions.

In Brown, the trial judge allowed the state’s expert on “child sexual abuse dynamics,” Shauna Galloway-Williams, to testify based on his conclusion that the jurors’ responses to questions during voir dire indicated they “would not have any prior knowledge from family members or otherwise as to sex abuse directly.”

Williams, writing for the Court of Appeals, affirmed the Brown ruling in 2015, and he relied on the decision when he wrote the recent opinion upholding the trial judge’s ruling in Jones. In that case, the judge had also allowed Galloway-Williams to testify after determining that what she had to say was beyond the ordinary knowledge of the jury.

In overturning the voir dire-related portion of the lower court’s ruling in Jones, Supreme Court Justice Kaye Hearn made it clear that trial judges must depend solely on their “sense of what knowledge is commonly held by the average juror” when making a judgment call about whether an expert’s testimony falls “outside the realm of lay knowledge.”

“The purpose of voir dire is to assess a juror’s individual biases and overall fitness to serve on the jury—not to probe the need for expert testimony,” Hearn added.  

Jones’ appellate defender, Laura Caudy of Columbia—she also defended Brown on appeal— said the high court “wanted to make sure that in the future no one cited to that subject matter” from Brown.

“I’d never seen this happen before—except in State v. Brown,” she added.

Thirteenth Circuit Solicitor Walter Wilkins of Greenville, whose office prosecuted Jones, agreed with the court’s decision and said “it would be very difficult” to use voir dire answers as a tool to “determine the intellectual level of the jurors.”

“In any case where I’ve had voir dire, we’re trying to find an impartial jury,” he said. “That’s the purpose.”

Greenwood-based criminal defense lawyer Charles Grose, who reviewed Jones at Lawyers Weekly’s request, wondered how a judge could ever have used voir dire responses to glean jurors’ level of knowledge about a subject. He said the questions that are asked aren’t very detailed and the responses are often equally basic.

“We don’t really have meaningful voir dire in South Carolina,” he said. “I think if we had better voir dire it might be easier for a judge to take that into account.”

Aside from the voir dire issue in Jones, the Supreme Court also considered for the first time whether an expert in child sex abuse dynamics could testify about the behavior of “nonoffending caregivers,” such as a parent who is aware of abuse but doesn’t intervene right away.

Prosecutors argued in Jones that Galloway-Williams’ testimony—she spoke generally about delayed disclosure and never met with anyone involved in the case—was necessary to help jurors understand why a caregiver might fail to act. One of the victims testified that she’d told her mom that Jones was abusing her, but the mom said she hesitated to notify the authorities out of fear that she’d lose her children.

“I think the state was using expert testimony to explain away why the mother didn’t do anything to prevent the abuse,” Caudy said. “There’s precedent dealing with the behavioral characteristics of sex abuse victims … but not the response of nonoffending caregivers.”

The trial judge allowed the testimony, ruling that it was “in a similar category as other behavioral testimony admissible in sexual abuse cases.” And the Supreme Court upheld the ruling. But Hearn cautioned in a footnote that the decision “does not create a categorical rule establishing this as a recognized area of expertise in every case.”

“If such an expert is challenged, the proper course of action for the trial court remains to hear a proffer of the proposed expert’s testimony and determine whether … all of the requirements of Rule 702 (of the state Rules of Evidence) have been satisfied,” Hearn added.

Despite Hearn’s caution, Caudy expected that prosecutors would try to use the opinion to argue for the admissibility of testimony concerning nonoffending caregivers. But Wilkins, the solicitor, said he did not believe that such testimony was “automatically admissible” in the wake of the decision.  

“Each case needs to be vetted,” he added.

Meanwhile, Grose shared Caudy’s concern that prosecutors could try to use the opinion to their advantage, but noted that “on the other side, we’ll be using what’s stated in that footnote as pushback.”

“When the judges allow it, then a more developed record goes up on appeal,” he said. “The results could be different one day.”

The seven-page decision is State v. Jones (Lawyers Weekly No. 010-073-18). An opinion digest is available at sclawyersweekly.com.

Follow Phillip Bantz on Twitter @SCLWBantz

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