People v. Williams

BIRD, C. J., Concurring.

Voir dire should not be limited solely to questions involving challenges for cause. The former limitation on voir dire was án unwarranted restriction on an accused’s right to a jury composed of impartial individuals. Further, it was unworkable in practice. Trial courts throughout the state differed widely in their application of the rule, some using it as a justification for sharply curtailing voir dire, others reading it broadly to allow extensive questioning of potential jurors.

However, if this court is to scrap the old rule, we should not replace it with a new standard which is more difficult to apply than its predecessor. That is exactly what the majority have done. They state that *413 voir dire must be allowed “at least” into “‘matters concerning which either the local community or the population at large is commonly known to harbor strong feelings that may stop short of presumptive bias in law yet significantly skew deliberations in fact.’” (Majority opn., ante, at p. 408, quoting United States v. Robinson (D.C.Cir. 1973) 475 F.2d 376, 381 .) Exactly what does that mean?

I submit that this new guideline will be no easier to apply in a uniform manner in practice than the old. Trial courts will continue to differ widely in their evaluation of what issues are sufficiently controversial to justify voir dire questioning.

The majority’s own examples are an excellent illustration of the problem. Under their formulation, a question about a prospective juror’s attitude toward the right to self-defense in the home is excluded, because this right is unlikely “to meet with serious opposition,” and is a “generally accepted tenet” with which few are likely to quarrel. (Majority opn., ante, at p. 411.)

On the other hand, the right of a person to use force in self-defense despite the existence of an avenue of retreat is found to be a “controversial rule,” and thus one about which the defendant must be allowed to question the jury panel. (Majority opn., ante, at p. 411.)

The distinction drawn between these two lines of questioning is ephemeral at best. The right to use deadly force against an intruder, even in the home, is certainly controversial in our society. Some people would probably find it even more controversial than the no-retreat rule. The majority’s ability to draw a neat line between these two questions is more a comment on the justices’ personal views of the two issues than a reflection of an objective difference in community attitudes.

I fear this new standard will lead to unpredictable results because judges will not agree on what issues are sufficiently controversial or emotional to meet the requirements. To implement this rule, a trial judge would have to be able to predict accurately the existence of possible bias on a given issue as it cuts across all social strata in a community. I doubt that the judiciary is capable of making such decisions and this court should not ask it to do so.

Further, there is no reason to exclude questioning about an issue such as self-defense in the home, even though it might arguably be consid *414 ered somewhat less controversial than another issue. Appellant’s right to defend himself in his home was central to his defense. Each juror’s attitude toward this issue was crucial to a fair adjudication of appellant’s guilt.

Voir dire should not be limited to “commonly known” prejudices. The chief purpose of voir dire is to uncover any biases harbored by the particular group of people who will serve on a jury. Why should a person be subjected to the risk that one of his jurors harbors doubts about a crucial legal principle merely because most community members might not harbor such doubts?

A limitation on voir dire is necessary to prevent endless voir dire questioning. However, the standard set down to achieve such a limitation should not rest on a trial judge’s ability to evaluate community attitudes toward the legal and factual issues that each case presents. Rather, inquiry should be permitted into all significant legal and factual aspects of a case. 1 The trial court’s discretion to control voir dire would be better served under a standard similar to Evidence Code section 352. 2 In controlling voir dire in this manner, trial judges would be making decisions they are well-trained to make, weighing the relevance of questions against their potential to create confusion or waste time.

Although this standard would leave a good deal of discretion with the trial courts, it will direct attention to the real issues that should be raised in voir dire questioning. Attorneys must be allowed great latitude in voir dire in order to ensure a fair and impartial jury. The courts may legitimately limit voir dire to prevent the needless waste of time or confusion. However, a trial judge’s gut level feelings about the possibility of bias in the community are not a proper standard for determining whether or not a particular question is proper voir dire.

See Note, Voir Dire: Establishing Minimum Standards to Facilitate the Exercise of Peremptory Challenges (1975) 27 Stan.L.Rev. 1493, 1515-1521.

Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”