New Laws for Jury Selection (CCP 222.5) Effective in 2019

Voir dire is when attorney’s can first expose jurors to the facts of the case and see the juror’s reactions. To more clearly see juror’s opinions, CCP section 222.5(d) provides, “Upon request of a party, the trial judge shall allow a brief opening statement for each party prior to the commencement of the oral questioning phase of the voir dire process.” This is known as a mini opening statement.

We think this is a must in every trial to truly appreciate the juror’s later responses to questions. It gets the jury engaged. It is also a way for the attorney to introduce the strengths and weaknesses of his case and build credibility with the jury. After all, any attorney who has picked a jury will tell you that voir dire is perhaps the most important time to “win” jurors to one’s side.

We therefore recommend that an attorney file a motion in limine seeking judicial permission to give such a mini opening statement and to clarify limits on its length.

CCP § 222.5 also allows the parties to submit a jury questionnaire and be afforded reasonable time to evaluate the responses from jurors. This can be critical toward excluding certain jurors for cause and making the actual juror follow-up questioning more effective.

One of the common issues that such questioning will address is whether a juror or jurors will follow a particular jury instruction that is material to a party’s case. On this issue, the California Supreme Court held that “a reasonable question about the potential juror’s willingness to apply a particular doctrine of law should be permitted when from the nature of the case the judge is satisfied that the doctrine is likely to be relevant at trial.” People v. Williams (1981) 29 Cal. 3d 392, 410.

To accomplish this, it is smart to simply ask the trial judge if the key jury instructions can be read and discussed with jurors. However, it is improper to ask “any question which, as its dominant purpose, attempts to precondition the prospective jurors to a particular result, indoctrinate the jury, or question the prospective jurors concerning the pleadings or the applicable law.” CCP § 222.5. Nonetheless, the directions in Standard 3.25(c) is that the trial judge will ensure jurors “will, without reservation, follow the court’s instructions and rulings on the law and will apply that law to the case.” STANDARDS RELATING TO EXAMINATION OF PROSPECTIVE JURORS IN CIVIL CASES §3.25(c). Indeed, a juror will need to know what the law is before the judge and counsel can make sure the jury will follow the applicable jury instructions, so it logically follows that reading the jury instruction to the jury is appropriate to make jury selection meaningful.

Lastly and most importantly, CCP § 222.5 states that the trial judge “shall permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case in front of the court.” This means that the judge cannot impose arbitrary time limits for jury selection. C.C.P. § 225(b)(2).

For more information about jury selection, please click on the following articles:

1. In Selecting a Jury, Should One Google Potential Jurors?
2. I Am an Illegal Alien and Face Criminal Charges – Will the Judge and / or Jury Be Told This?
3. Should I Waive a Jury Trial and Instead Have a Bench Trial?
   

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