IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA	                 §
§
VS. 	                                                                 §		______________
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__________________________	                 §

MOTION FOR DEFENSE COUNSEL TO CONDUCT VOIR DIRE
OF PROSPECTIVE JURORS
AND AUTHORITIES IN SUPPORT THEREOF

TO THE HONORABLE ________________, JUDGE, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION:

	Comes Now ____________________, the Defendant in the above styled and numbered cause, pursuant to Rule 24(a), Fed. R. Crim. Pro., and files her motion requesting that her counsel be allowed to conduct voir dire examination of the prospective jurors and for cause would show the Court as follows:
I.
Motion
	The Defendant requests that the Court permit her counsel to conduct voir dire examination of prospective jurors on the issues relevant to the case, as allowed by Rule 24(a)(1), Fed. R. Crim. Pro.  The Defendant is requesting that the Court allow defense counsel to do more questioning of the prospective jurors than simply asking questions that follow-up voir dire examination by the Court or merely submitting questions for the Court to ask.  The Defendant is requesting that defense counsel be allowed to conduct substantial voir dire on issues relevant to the case, and not just follow-up questions to the Court’s examination of prospective jurors.

II.

Brief
	Rule 24(a)(1) provides that “[t]he court may examine prospective jurors or may permit the attorneys for the parties to do so.”  The rule “allows the trial judge wide discretion as to the scope and conduct of voir dire examination and the decisions of [the 5th] circuit have given the rule just such a liberal interpretation.”  United States vs. Ledee, 549 F.2d 990, 992 (5th Cir. 1977); United States vs. Garcia-Flores, 246 F.3d 451, 458 (5th Cir. 2001).
	The 5th Circuit has recognized that “voir dire examination in both civil and criminal cases has little meaning if it not conducted by counsel for the parties.  ‘A judge cannot have the same grasp  of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case.  The court does not know the strength and weaknesses of each litigant’s case.  Justice requires that each lawyer be given an opportunity to ferret out possible bias and prejudice of which the juror himself may be unaware until certain facts are revealed.’  Frates and Greer, Jury Voir Dire: The Lawyer’s Perspective, 2 A.B.A. Litigation No. 2 (1976).”  United States vs. Ledee, 549 F.2d 990, 993 (5th Cir. 1977); United States vs. Ible, 630 F.2d 378, 395 (5th Cir. 1980).  In fact, the 5th Circuit has stated that the practice of almost exclusive voir dire examination by the Court does not take into account the fact that it is the parties, rather than the court that has the best understanding of the case.  “‘Peremptory challenges are worthless if trial counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes.’  United States vs. Ledee, 549 F.2d 990, 993 (5th Cir. 1977), cert. denied, 434 U.S. 902, 98 S.Ct. 297, 54 L.Ed.2d 188 (1977).”....Experience indicates that in the majority of situations questioning by counsel would be more likely to fulfill this need than an exclusive examination in general terms by the trial court.”  United States vs. Ible, supra at 395.  The 5th Circuit has encouraged the following procedure: “The trial judge will explain the nature of the case in general terms, point out the parties and counsel, cover the most basic points of law (burden of proof, presumption of innocence, right to remain silent, etc.), explain the procedures and schedule to be followed and then turn the questioning over to trial counsel.  We encourage this approach.”  United States vs. Ible, 630 F.2d 389, 395 n.8 (5th Cir. 1980).
	A number of factors contribute to the need to have the attorneys conduct the voir dire.  The most powerful figure in the courtroom is obviously the judge.  Robed and physically elevated, defer to and addressed as “Your Honor,” the judge has the greatest social distance from the average veniremen.  The social distance and authority places undue burden on the veniremen in communicating their true feelings.  Indeed there is an inverse relationship between the amount of the perceived social distance and a likelihood of candid communication.  Who among us wishes to disclose to one in a position of respect and authority that we can not or will not provide a fellow citizen a fair trial.  How a question is phrased, the kind of voice in which it is asked and the non-verbal behavior of the questioner all contribute to the response received.  Open ended questions, with no apparent right or wrong answer, are more likely to illicit truthful responses from the jurors about their thoughts and feelings on subjects relevant to the case.  On the other hand, closed ended questions calling for “yes” or “no” answer, especially when the acceptable answer is obvious, elicits little useful information from which the attorneys can exercise peremptory strikes.  
	Voir dire is a mutual search between jurors, lawyers and the court to determine whether a particular individual can insure integrity of the trial process in a given case.  Although a potential juror may be perfect for every other case in the courthouse, unless his or her attitudes, feelings and biases are completely explored, the juror does not know and cannot help those charged with the responsibility of providing every citizen with a fair trial.  Attorney conducted voir dire examination will help to achieve the goal in this case.  The Honorable Donald P. Lay, Judge of the 8th Circuit Court of Appeals, in his article entitled “In a Fair Adversary System, the Lawyer Should Conduct the Voir Dire of the Jury”, stated:
We would, as judges, have to ignore what we know as men to assume that only the law and the naked facts carry the burden of persuasion.  Psychology governs human affairs even in the courtroom.  Legitimate efforts in the course of jury selection can and should always be used to give a jury a favorable view of any litigant’s case.  Our system of justice is deprived of its fullest potential when the lawyer is denied the right to examine veniremen in an adversary setting. 

	WHEREFORE, the Defendant prays that the Court allow her counsel substantial time to conduct voir dire examination of the prospective jurors in this case on the issues relevant to the case.
							Respectfully Submitted,

							____________________________________
							Name
							State Bar No. 
							Address
							City, State, Zip
							Phone
							Attorney for Defendant

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Motion for Defense Counsel to Conduct Voir dire of Prospective Jurors and Authorities in Support Thereof was hand delivered to the United States Attorney at on the _______  day of _______________, 20______.

							___________________________________
							Attorney for Defendant