Ruben Arnez Collins v. State, No. 24, September Term, 2016

CRIMINAL LAW — VOIR DIRE — PROCEDURE — Maryland law grants broad
discretion to trial judges in their conduct of voir dire. While informing the venire that
sensitive questions may be answered at the bench rather than in open court is good practice,
it is not an abuse of discretion for a judge to question the venire in open court without
providing that instruction.
Circuit Court for Wicomico County
Case No. 22-K-13-000746
Argued: November 3, 2016
                                          IN THE COURT OF APPEALS

                                                OF MARYLAND

                                                     No. 24

                                             September Term, 2016

                                    ______________________________________

                                           RUBEN ARNEZ COLLINS

                                                        v.

                                            STATE OF MARYLAND
                                    ______________________________________

                                              Barbera, C.J.
                                              Greene
                                              Adkins
                                              McDonald
                                              Watts
                                              Hotten
                                              Getty,

                                                    JJ.
                                    ______________________________________

                                             Opinion by Barbera, C.J.
                                    ______________________________________

                                             Filed: April 21, 2017
       “Voir dire,” the French phrase meaning “to say the truth,” describes the preliminary

examination of prospective jurors to determine whether they are qualified and suitable to

serve as jurors. The voir dire process is critical to ensuring that the courts honor the

defendant’s right to an impartial jury guaranteed by the Sixth Amendment to the United

States Constitution and Article 21 of the Maryland Declaration of Rights.1

       We decide in this case whether the voir dire process reasonably assured that

Petitioner, Ruben Arnez Collins, was tried before an impartial jury. We conclude that the

constitutional standard was satisfied and therefore affirm the judgment of conviction. We

use this opportunity, though, to encourage trial judges to adopt certain best practices to

help achieve the constitutionally-mandated goal of an impartial jury.

                                               I

                          The Background and Procedural History

       The issue before us does not require an extensive rendition of the factual and

procedural underpinnings of this case. It is enough to note that Collins was tried before a

jury in the Circuit Court for Wicomico County on charges related to the robbery of a

convenience store in Delmar, Maryland. The evidence presented to the jury permitted it to

find beyond a reasonable doubt that Collins entered the convenience store brandishing a

box cutter, demanded money from the store clerk, and fled with over $100 in cash. The



1
   The Sixth Amendment to the Constitution, applicable to the States through the Fourteenth
Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right to
. . . trial, by an impartial jury.” Article 21 of the Maryland Declaration of Rights provides:
“That in all criminal prosecutions, every man hath a right to . . . trial by an impartial jury.”
jury found Collins guilty of armed robbery, robbery, second degree assault, theft under

$1000, and wear, carry, and transport of a weapon with intent to injure. The court

sentenced Collins to twenty years imprisonment for armed robbery and merged the

remaining offenses.

       Collins noted an appeal to the Court of Special Appeals, arguing, among other

claims, that the trial judge had abused his discretion in conducting the voir dire of the

prospective jurors. The Court of Special Appeals rejected that argument and in an

unreported opinion affirmed the judgment of conviction. We granted Collins’s petition for

writ of certiorari to review that holding of the Court of Special Appeals.

                                             II

                        The Voir Dire Process in the Present Case

       After the prospective jurors were sworn,2 the trial judge began the voir dire process

with the following: “All right, ladies and gentlemen [of the venire], I’m going to ask you a


2
   Maryland Rule 4-312(e)(1) addresses the requirement that the prospective jurors’
responses to questions posed during voir dire “be under oath.” That rule provides:
               (1) Examination. The trial judge may permit the parties to conduct an
       examination of qualified jurors or may conduct the examination after
       considering questions proposed by the parties. If the judge conducts the
       examination, the judge may permit the parties to supplement the examination
       by further inquiry or may submit to the jurors additional questions proposed
       by the parties. The jurors’ responses to any examination shall be under oath.
       On request of any party, the judge shall direct the clerk to call the roll of the
       array and to request each qualified juror to stand and be identified when
       called.
The Maryland Rules do not prescribe a particular oath. One example can be found in
Montgomery v. State, 206 Md. App. 357, 368 (2012). The oath given in that Baltimore
City case, delivered by the courtroom clerk, reads: “Do you and each of you solemnly
promise and declare that you shall true answers make to such questions, as the Court shall
demand of you? If so please answer I do.”
                                             2
series of questions; I’ll ask them to you as a group. If your answer to any question is yes,

please stand up so I may ask you some additional questions.” The judge then described

the nature of the case to the venire, listing the charges and the name and location of the

convenience store where the robbery occurred. The judge did not indicate whether follow-

up questions would be asked in open court or at the bench, and did not inform venire

members that they could request to answer follow-up questions in relative privacy at the

bench.

          No member of the venire responded affirmatively to Questions One through Five.

Those questions addressed prior knowledge of the case, predetermined views on guilt,

relationship to Collins, relationship to the attorneys, and previous involvement “in the

criminal justice system either as the victim of, a witness to or a person accused of a crime

such as that with which the Defendant is charged.”

         Question Six asked whether any member of the venire or his or her immediate

family was employed currently or in the past by a law enforcement agency or a prosecutor’s

office. That question elicited eleven affirmative responses from the venire. The judge

advised those who responded in the affirmative that he would be asking follow-up

questions of each of them, individually. At that point, defense counsel asked, “Your Honor,

we’re not going to the bench?” The court replied, “No.” Twice thereafter, as the judge

questioned other venirepersons who had answered Question Six in the affirmative, defense

counsel asked the judge “that we be permitted to have these answers at the bench.” The

judge denied both requests.

         The first venireperson to be questioned in open court was Juror 582. The judge

                                             3
asked whether he or a family member was employed by law enforcement. Juror 582 replied

that he had been employed with the New York City Police Department from 1984 to 2004.

The judge then asked: “Would that affect in any way your ability to fairly and impartially

decide a criminal case such as this?” Juror 582 answered “no,” and the judge directed him

to take his seat. The judge questioned in the same way the ten other venirepersons who

had indicated an affirmative answer to Question Six, asking in some instances for

additional detail. Save for Juror 538, each of the others who had responded affirmatively

to Question Six advised the judge that, notwithstanding the connection with law

enforcement, he or she could fairly and impartially decide the case. The judge brought

Juror 538 to the bench for further questioning, asked follow up questions, and, in light of

his responses, informed him that he was struck for cause and, once the jury had been

picked, he would be dismissed. Juror 538 was dismissed at the conclusion of jury selection.

       As voir dire progressed, the judge asked additional questions of the full venire,

including whether any of the prospective jurors would be more or less inclined to believe

a person was guilty because of his race; whether any of them had such strong feelings about

the charges in the case that they could not fairly weigh the evidence; whether any of them

had religious, moral, or other reasons that would prevent them from deciding the guilt or

innocence of another human being; whether any of them knew the possible witnesses in

the case; and a final catch-all question asking whether there was any other reason they

could not serve.

       The judge received affirmative responses to two of these questions: whether venire

members had religious, moral, or other reasons they could not judge another person; and

                                            4
whether members knew any of the possible witnesses. The judge had those prospective

jurors approach the bench for follow-up questions. Thus, only those prospective jurors

who responded affirmatively to Question Six, concerning connections with law

enforcement or prosecution agencies, were asked follow-up questions in open court.

                                             III

                                         Discussion

A. The Parties’ Arguments

       Collins argues that the trial judge abused his discretion in his handling of the voir

dire process and thereby violated Collins’s right to a fair and impartial jury. He claims that

the violation stemmed from the judge’s decision not to invite all venirepersons who

provided affirmative responses to approach the bench for follow-up questions, and the

judge’s failure to inform the venirepersons that they could request to answer at the bench.

Collins argues that this procedure discouraged the venirepersons from completely and

honestly answering the questions asked of them. He claims that, because many of the

questions asked during voir dire could be embarrassing to venirepersons, the trial court’s

method does not provide the “reasonable assurance that prejudice would be discovered if

present,” as our jurisprudence requires in order to satisfy the constitutional guarantee of an

impartial jury. See, e.g., White v. State, 374 Md. 232, 242 (2003).

       The State argues in response that the trial judge acted within the bounds of his

discretion in conducting voir dire, which is the standard by which the appellate courts

assess the propriety of the trial court’s chosen process. In support of that argument, the

State notes the following: the judge posed “single-topic questions” that were read one at a

                                              5
time; he engaged in individual voir dire of the prospective jurors who indicated an

affirmative response by asking them single questions; and he brought to the bench jurors

who gave an “affirmative response to any remotely ‘sensitive’ topics.” The State further

argues that the standard we have set for review of the conduct of voir dire “is not that there

be no possibility of undiscovered prejudice.” Rather, as Collins recognizes, “the standard

is that the procedures created a ‘reasonable assurance’ that prejudice will be discovered.”

B. The Law

       We have described the voir dire process as “critical” to assuring that the federal and

state constitutional “guarantees of a fair and impartial trial [are] honored.” Stewart v. State,

399 Md. 146, 158 (2007). “Without an adequate voir dire the trial judge’s responsibility

to remove prospective jurors who will not be able impartially to follow the court’s

instructions and evaluate the evidence cannot be fulfilled.” Rosales-Lopez v. United States,

451 U.S. 182, 188 (1981).

       Voir dire is a flexible process in this state, not bound by statutory prescriptions, see

Davis v. State, 333 Md. 27, 34 (1993), but instead built over time through our case law.3

We have made plain that, in this state, “the sole purpose of voir dire is to ensure a fair and

impartial jury by determining the existence of cause for disqualification, and not as in many

other states, to include the intelligent exercise of peremptory challenges.” Stewart, 399



3
  While the Courts and Judicial Proceedings Article contains some guidance on matters
such as the authority of the trial judge to excuse for cause or upon exercise of a party’s
peremptory challenge, the process and substance of voir dire in Maryland has been
developed through the common law. See Md. Code Ann., Cts. & Jud. Proc. §§ 8-404, 8-
420 (2013, 2013 Repl. Vol., 2016 Supp.).
                                               6
Md. at 158; see also Pearson v. State, 437 Md. 350, 356-57 (2014); Dingle v. State, 361

Md. 1, 13-14 (2000); Davis, 333 Md. at 35-36 (stating that voir dire covers “two areas of

inquiry that may uncover cause for disqualification: (1) an examination to determine

whether prospective jurors meet the minimum statutory qualifications for jury service; or

(2) an examination of a juror conducted strictly within the right to discover the state of

mind of the juror in respect to the matter in hand or any collateral matter reasonably liable

to unduly influence him” (internal quotation marks, ellipses, and citation omitted)).

       We grant to the trial court significant latitude in the process of conducting voir dire

and the scope and form of questions presented to the venire. “[N]o formula or precise

technical test exists for determining whether a prospective juror is impartial.” White, 374

Md. at 241. And we have said repeatedly that the trial judge is vested with broad discretion

in the conduct of voir dire, subject to reversal for an abuse of discretion. Pearson, 437 Md.

at 356; see also Burch v. State, 346 Md. 253, 293 (1997); Perry v. State, 344 Md. 204, 218

(1996); Hill v. State, 339 Md. 275, 279 (1995).         Yet, “[u]ndergirding the voir dire

procedure and, hence, informing the trial court’s exercise of discretion regarding the

conduct of the voir dire, is a single, primary, and overriding principle or purpose: to

ascertain the existence of cause for disqualification.” Dingle, 361 Md. at 10 (citation and

internal quotation marks omitted). “[W]e do not require perfection in its exercise.” Wright

v. State, 411 Md. 503, 514 (2009). The “trial court reaches the limits of its discretion only

when the voir dire method employed by the court fails to probe juror biases effectively.”

Id. at 508.



                                              7
       We have made equally clear that voir dire should not be “cursory, rushed, and

unduly limited,” White, 374 Md. at 241, but instead should be “a comprehensive,

systematic inquiry that is reasonably calculated, in both form and substance, to elicit all

relevant information from prospective jurors.” Wright, 411 Md. at 514. The broad

discretion that we accord judges in the conduct of voir dire “and the rigidity of the limited

voir dire process are tempered by the importance and preeminence of the right to a fair and

impartial jury and the need to ensure that one is empaneled.” Dingle, 361 Md. at 14. We

therefore would not fulfill our duty as a reviewing court if we were to grant “rote deference

to the trial court’s decision based on the numerous cases in which we have held that a voir

dire was properly within a trial court’s discretion.” Wright, 411 Md. at 512. In the end,

“[t]he standard for evaluating a court’s exercise of discretion during the voir dire is whether

the questions posed and the procedures employed have created a reasonable assurance that

prejudice would be discovered if present.” White, 374 Md. at 242.

       Regardless of the leeway we grant trial courts in the process of conducting voir

dire, we require that certain substantive elements be incorporated. If relevant to the case

and requested by one of the parties, we have held that it is reversible error for a trial court

not to question the venire regarding racial, ethnic, cultural or religious bias; whether more

or less credence would be given to a police officer simply because of that officer’s position;

and whether the venire harbors an unwillingness to convict a defendant of a capital crime.

See Hernandez v. State, 357 Md. 204, 232 (1999) (holding trial judge erred by failing to

inquire into prospective jurors’ possible racial or ethnic bias after being requested to do so

by defendant); Hill, 339 Md. at 285 (same); Bowie v. State, 324 Md. 1, 15 (1991) (same);

                                              8
Casey v. Roman Catholic Archbishop of Balt., 217 Md. 595, 606-07 (1958) (holding that

the trial judge erred by failing to inquire into prospective jurors’ possible religious bias);

Langley v. State, 281 Md. 337, 348-49 (1977) (holding that trial courts must inquire into

undue weight given to police officer testimony).4 Yet, even for these mandatory subjects

of inquiry, generally, “neither a specific form of question nor procedure is

required.” Bowie, 324 Md. at 13.

       That said, trial judges are not given carte blanche in determining how to pose

questions, and in several instances, we have identified reversible error. We held in Wright

that the trial court committed reversible error by posing seventeen voir dire questions in

quick succession, and then requiring the venirepersons to answer all seventeen questions

at once, “result[ing] in substantial delay between presentation of the questions and the

answers.” See 411 Md. at 512-13. In Dingle, we held that the trial judge committed

reversible error in posing compound questions, the second part of which instructed the juror

to decide whether he or she could be fair and impartial. 361 Md. at 21. By allowing the

prospective jurors to decide their ability to be fair, the process supplanted a key role of the

trial judge. Id. In Pearson, we held that the trial judge committed reversible error in

phrasing a “strong feelings” question such that each juror was required to evaluate his or

her own potential bias. 437 Md. at 361-62.



4
  Before the abolition of the death penalty in Maryland, in 2013, we had long required that
in a capital case the State has the right to challenge a prospective juror for cause based
upon that juror’s conscientious scruples against capital punishment or unwillingness to
convict based on circumstantial evidence in a capital case. See Corens v. State, 185 Md.
561, 564 (1946).
                                              9
C. The Present Case

       Collins relies upon Wright, Dingle, and Pearson to support his contention that the

voir dire procedure employed in the case at bar resulted in reversible error, as in each of

those cases. We disagree. Unlike in Dingle, the trial judge in this case did not compound

his questions,5 neither did the method employed by the trial judge improperly abdicate the

judge’s role to the venire members as in Dingle. Nor is this case like Wright. Unlike in

that case, the trial judge’s method, here, did not impose upon the prospective jurors a

challenge to memory and understanding that most, if not all, people cannot reasonably be

expected to meet.

       In those cases where we have reversed based on an error in voir dire, the failure to

investigate critical substantive matters or the procedure employed by the trial judge in some

way directly prevented the judge from receiving information necessary to assess

impartiality. In Hernandez, the trial judge failed to ask the venire about a critical subject

area—the venire members’ potential bias related to the defendant’s race. 357 Md. at 225.

In Dingle, the court asked compound questions, the structure of which likely concealed

some positive responses. 361 Md. at 21. In Wright, the court bundled every question into

one lengthy discourse and asked follow-up questions of the venire members after an




5
   We note that, as we have recognized in the past, a voir dire process that involves
compound questions is not automatically invalid. “A review of the trial court’s rulings
should be undertaken only on the record of the voir dire examination as a whole.” White,
374 Md. at 243. In White, the trial judge initially asked the venire compound questions,
but she followed that with an exhaustive, two-day long, individual voir dire process, which
this Court found to be procedurally sufficient. Id. at 248.
                                             10
extended delay, without the benefit of printed material to refresh their memories. 411 Md.

at 512-13. The problems identified in the cases above are not present here.

       Collins argues that the potential embarrassment that venire members may anticipate

from answering questions in open court is, on its own, such a serious procedural problem

that questions in open court should constitute an abuse of discretion. He contends that the

mere presence of the other venire members should be considered sufficient to prevent

necessary information from reaching the judge—that potential embarrassment is so

powerful a force that it should be reversible error to question a venire as a group. But

Collins’s argument asks for a much higher bar than we have set through our prior cases on

this matter, based in a deferential standard of review that seeks only “reasonable assurance

that prejudice would be discovered if present,” White, 374 Md. at 242 (emphasis added),

and grants broad latitude to the trial judge in the scope and form of questioning.6

       Collins points out that the trial judge did not assure the venire that, should they have

an embarrassing response to any question, they might discuss the response in relative

privacy with the judge, in the presence of counsel and Collins, rather than in open court.

But, neither did the judge tell the venire that he would engage in public discussion of their




6
   The standard we have set for a trial judge’s performance of voir dire also has roots in
matters of judicial economy, acknowledging that the judge is charged with efficiently
conducting voir dire while pressed with an active docket of pending cases. Judges in this
State make various decisions based in judicial economy, recognizing that “[i]n a world of
finite resources, if the fabled ‘day in court’ is permitted casually to multiply into twenty
days in court, the inevitable consequence is that, by the inexorable law of mathematics,
nineteen other litigants are denied any time in court at all.” Davis, 333 Md. at 42 (quoting
Davis v. State, 93 Md. App. 89, 94 (1992)).
                                              11
responses—he said merely that, “[i]f your answer to any question is yes, please stand up

so I may ask you some additional questions.”

       We agree with Collins that a better method is to inform the jury that follow-up will

occur at the bench. Yet, use of a different process, such as the one in the present case, is

not automatic grounds for reversal. Maryland law does not require the trial judge to

question the venire at the bench. Instead, “[i]n Maryland, unlike some of our sister

jurisdictions, the trial judge may, at his or her discretion, conduct individual voir dire out

of the presence of other jurors but is not required to do so.” White, 374 Md. at 241. In

addition, the trial judge here asked follow-up questions in open court in regards to only one

question—the non-sensitive inquiry into whether any member of the venire was employed

or had close relatives employed in law enforcement. For all other questions that elicited

affirmative initial responses, including the more sensitive religious and moral concern

question, the judge conducted follow-up inquiry at the bench.7


7
   Collins has endeavored to establish that the trial judge’s process was flawed because of
the contrast between the complete lack of response in this case to the question regarding
involvement in the criminal justice system, and the multitude of responses recorded in other
criminal cases in the same county and same year. Collins, through counsel, performed an
extensive review, examining the procedure and responses in twenty-nine criminal cases
tried in Wicomico County in 2014. He found that, in every case except this one, the trial
judge invited venire members to the bench for questioning, and that in every other case
examined, affirmative responses were recorded regarding involvement in the criminal
justice system.
        Collins’s thorough research of these practices is laudable, but that other judges
employ a different approach to voir dire in a criminal case does not alter our decision on
whether the process here violated the legal standard. We also note that the trial judge in
this case phrased his question as follows: “Have you or has any member of your immediate
family ever been involved in the criminal justice system either as the victim of, a witness
to or a person accused of a crime such as that with which the Defendant is charged?”
(emphasis added). It would not be particularly surprising if no member of the venire or
                                             12
       We review a judge’s conduct of voir dire for abuse of discretion and, when a judge’s

approach provides reasonable assurance that prejudice will be discovered, the judge has

acted within his or her discretion. Id. at 242. Here, the trial judge asked the questions

required by our jurisprudence and in an acceptable form. This Court has never held that

failing to inform jurors they may respond in private is an abuse of discretion, and we

decline to do so now.

                                            IV

                                 A Note on Best Practices

       We sympathize with the position of any trial judge conducting voir dire—the circuit

court judges of this state often have a potentially lengthy trial ahead and many other cases

queued behind, let alone the immediate issue of the multi-part jury selection process. We

understand, too, the urge to adopt a methodology for conducting voir dire in a manner that

expends the least amount of time to select a jury, while remaining compliant with the

dictates of our jurisprudence on the subject. We therefore take this opportunity to comment

on a best practice for conducting voir dire to provide guidance to judges seeking an

efficient, yet thorough jury selection process that seeks to uncover cause for

disqualification.




their family had been previously involved in an armed robbery. This question may have
elicited responses if the trial judge had dropped the emphasized clause; it is also possible
that some or even all responses Collins’s counsel identified in other Wicomico County
cases may have been in response to such a broader question. Still, that such is possible
does not dictate a modification of our current standard of review for abuse of discretion,
nor does it alter the outcome in the present case.

                                            13
       As Collins has argued, we have expressed concern regarding questions posed to the

venire in open court. In Davis, we acknowledged that:

       [E]ven where the scope of the proposed voir dire questioning is otherwise
       permissible but potentially embarrassing or humiliating, the trial judge
       should exercise discretion in structuring the questions in a manner which
       would avoid unnecessarily embarrassing the venire panel. Such questions
       should be worded in a way that potentially embarrassing responses should be
       given at the bench, rather than before open court.

333 Md. at 36 n.1. We also have recognized that “there may be, and often is, a conflict

between keeping the voir dire process limited and the goal of ferreting out cause for

disqualification.” Dingle, 361 Md. at 14.

       Research has produced concerning findings regarding the voir dire process. Those

findings support the adoption of procedures that encourage disclosure to the greatest extent

practicable.8 We appreciate that the voir dire process does not require a “one size fits all”


8
   In one study, researchers observed voir dire in thirty-one criminal cases in the trial courts
of the District of Columbia, then conducted post-trial interviews of 190 of the prospective
jurors that had been empaneled, and compared their voir dire answers to their post-trial
answers. Richard Seltzer et al., Juror Honesty During the Voir Dire, 19 J. CRIM. JUST. 451
(1991). The researchers found that nearly twenty-five percent of jurors who admitted post-
trial that they or members of their family had been victims of crime did not come forward
when questioned during voir dire. Id. at 455. The researchers also found that nearly thirty
percent of the jurors interviewed should have, but did not, come forward in response to
questions regarding their employment or friends and family’s employment in law
enforcement. Id. at 456. Many other troubling studies of potential bias and nondisclosure,
intentional or subconscious, have been recorded in the academic literature. See, e.g., Dale
W. Broeder, Voir Dire Examinations: An Empirical Study, 38 S. CAL. L. REV. 503 (1965)
(conducting post-trial interviews of 225 jurors and finding numerous instances of
nondisclosure); Neal Bush, The Case for Expansive Voir Dire, 2 L. & PSYCHOL. REV. 9,
13-14 (1976); Patricia G. Devine, Stereotypes and Prejudice: Their Automatic and
Controlled Components, 56 J. PERSONALITY & SOC. PSYCHOL. 5 (1989) (explaining the
concept of implicit bias—those biases, sometimes including racial biases, that jurors hold
without conscious awareness and control of its impacts on their perception and judgment).

                                              14
in all cases throughout Maryland. Nevertheless, attention should be paid to how best, in

every case, to reasonably ensure the federal and state constitutional guarantee of an

impartial jury. “While we have every confidence in our jurors’ abilities to respond

intelligently and effectively to inquiries posed during voir dire, we are also duty-bound to

eliminate any doubt or error in the process, inasmuch as is possible.” Wright, 411 Md. at

512.

         Guidance on how best to achieve that goal has been further developed by the

Maryland State Bar Association’s Special Committee on Voir Dire. The Committee’s

Model Jury Selection Questions for Criminal Trials provides a flexible script with

committee notes as a tool for judges in the voir dire process. See MARYLAND STATE BAR

ASS’N,     MODEL      JURY     SELECTION      QUESTIONS      FOR     CRIMINAL      TRIALS,

http://www.msba.org/committees/voirdire/default.aspx (last visited on April 17, 2017).

We recommend the procedure outlined in the following committee note:

              Before proceeding, judges should advise counsel whether the judge
       will ask all general questions before asking any follow-up questions. If the
       judge will take follow-up responses during the general questioning, the judge
       should also advise counsel whether they may ask follow-up questions
       directly to prospective jurors or must request that the judge ask specific
       follow-up questions.
              Judges (and counsel) must conduct all juror questioning on the
       record—both general questions of the full jury panel and follow-up questions
       of individual prospective jurors. Follow up questioning of a prospective
       juror should usually be conducted out of the hearing of the full panel.
              To improve the efficiency of juror questioning and to accommodate
       persons who may have difficulty walking or standing, judges may choose to
       ask all general questions first, noting affirmative responses for follow-up
       questions after the general question period. Judges may conduct individual
       questioning at the bench or in a conference room where the record and
       security will be maintained.


                                            15
      The Committee’s document also offers useful model language explaining to the

prospective jurors why the voir dire process is important to securing a fair and impartial

jury, and outlining how the process will proceed, including that the members of the venire

will be sworn—that they will be asked to declare under the penalty of perjury to answer

truthfully all questions asked of them. The model provides as well that, if the answer is

“yes” or “maybe” the prospective juror should stand until the judge calls upon him or her,

and when called upon, to give only the juror’s number.9

      The proposed practice further suggests that the trial judge should choose one of the

following alternatives for handling follow-up questions, and inform the jurors that follow-

up questions may be asked at the bench:

      Alternative 1: If the judge will ask all general questions before individual
      follow-up responses, continue:

      After I finish asking all general questions, I will ask you to come to the bench
      [conference room] to explain your response out of the hearing of your fellow
      prospective jurors.

      Alternative 2: If the judge will ask follow-up questions immediately after
      initial responses, continue:

      After you tell me your number, I may ask you to explain or discuss your
      response. If you do not wish to answer in open court, please let me know. I
      may ask you to come to the bench at that time, or at a later time.

      No one can deny that open court is a formal, public place, staffed with authority

figures. Persons called for jury service are among strangers and—except for the rare



9
  We agree with the recommendation that the court ask jurors to indicate an affirmative
response to a question, even if the answer is “maybe”, as it is more likely to resolve the
potential for confusion or uncertainty among the prospective jurors.
                                            16
individual who is familiar with a courtroom setting and the trial process—may be confused

by the process or substance of voir dire, much less its importance to the constitutional

guarantee of a trial by an impartial jury. The setting alone is likely to intimidate many

venirepersons. It is also likely that many prospective jurors have little or no experience

speaking in public, much less in answer to a judge’s questions, in the formality of a

courtroom, and in the presence of a crowd. Finally, it goes almost without saying that the

more intimidating the process, the greater the chance that a prospective juror will simply

refuse to answer or shy from responding with complete candor.

       Of the two alternatives proposed by the Committee, we prefer the former because it

suggests an approach that provides all venirepersons the greatest degree of privacy while

decreasing anxiety and encouraging full disclosure of information relevant to cause for

disqualification. Alternative 1 calls for public disclosure, through non-verbal assent only,

by those prospective jurors who believe the answer to any given question is “yes” or

“maybe”, followed at the appropriate time by subsequent communication with the judge or

lawyers at the bench. This alternative avoids both the requirement that the responding juror

speak in public as well as the possibility that the juror, wittingly or otherwise,

communicates to other venirepersons information that could adversely affect their

qualification to serve on the jury. Alternative 1 also eliminates any anxiety that might

attend a prospective juror’s having to request to respond at the bench, as is contemplated

by Alternative 2.




                                            17
       We appreciate the good work of the Committee and commend to bench and bar alike

a review of the model questions in their entirety.10 The thoughtful commentary and

recommendations in the report should make it as easy as practicable for venire members to

disclose information fully and with candor.

                                                   JUDGMENT OF THE COURT OF
                                                   SPECIAL APPEALS AFFIRMED.
                                                   COSTS   TO  BE  PAID  BY
                                                   PETITIONER.




10
    In that vein, we also agree with the Committee’s suggestion that, early in the judge’s
introductory comments, the judge include the following: “If you have a mobile phone or
device with you, you must turn it off now, and you may not turn it on again until I give you
permission to do so.” This direction not only reduces distraction, but helps prevent
prospective jurors from obtaining information about the case they may be asked to decide.
                                              18
