Kiernan v. Van Schaik, 15076.

Citation347 F.2d 775
Decision Date24 June 1965
Docket NumberNo. 15076.,15076.
PartiesJames KIERNAN and Mary Kiernan, Appellants, v. Gerald VAN SCHAIK, t/a Van's Atlantic Station.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

John Merwin Bader, Bader & Biggs, Wilmington, Del., for appellants.

Rodman Ward, Jr., Prickett & Prickett, Wilmington, Del. (William Prickett, Jr., Wilmington, Del., on the brief), for appellee.

Before HASTIE and FREEDMAN, Circuit Judges, and WEBER, District Judge.

FREEDMAN, Circuit Judge.

This is a suit for damages arising out of a fall on the sidewalk entrance to defendant's gas station. There have been two trials; at the first trial the jury disagreed and on the second trial some months later before the same judge a verdict was returned for the defendant. Plaintiffs unsuccessfully sought a new trial on the sole ground that the verdict was against the weight of the evidence.

On this appeal plaintiffs make no complaint against the denial of their motion for new trial, but assign as error the trial judge's rejection of the questions they submitted to him for the voir dire.

The error was not waived because it was not assigned in the motion for new trial. Objections to rulings made at trial are ripe for review and need not be reiterated in the court below on a motion for new trial. This is equally true whether no such motion is made or the objection is not included as a ground for new trial when a motion is filed. See 6 Moore, Federal Practice (2d ed. 1953), ¶ 59.14.1

The trial judge denied plaintiffs' request that he put the following questions to the prospective jurors on their voir dire:

"1. Are any of you employed by or stockholders in an insurance company which is engaged in the casualty insurance business?
"2. Are any of you engaged in the general insurance agency business or are any of you an agent for a casualty insurance company?
"3. Have any of you ever worked as a claims investigator or insurance adjuster?
"4. Have any of you read any articles or advertising in periodical publications which tend to indicate a relationship between the amounts of personal injury verdicts and increases in insurance premiums?
"5. (If any of the jurors answer the next preceding question in the affirmative) Notwithstanding any opinion which you might have formed regarding the subject of the advertising or articles just mentioned, would you be able to decide the question of liability and damages in this case solely on the evidence and the law without being influenced by such an opinion?"

While no reasons were specifically given for the ruling, it is apparent from the record that the trial judge refused the requests on three grounds: (1) the practice in the state and federal courts in Delaware is not to conduct any extensive voir dire; (2) Delaware counsel — including those who appeared in this case — subscribe to the services of an investigating agency which supplies them with information on all prospective jurors in the federal and state courts some time before the commencement of the trial sessions; and (3) a prima facie showing was required of the prospective juror's connection with the business of insurance before the questions would be considered.

1. The right to an impartial jury in the federal courts in civil and criminal cases is guaranteed by the Constitution. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed * * *." Amendment VII preserves "the right of trial by jury" in civil cases, and although the impartiality of the jury is not expressly mentioned it is inherent in the right of trial by jury and is implicit in the requirement of the Fifth Amendment that "No person shall * * * be deprived of life, liberty, or property, without due process of law * * *."

The Federal Rules, which are substantially identical in civil and criminal cases, leave it to the discretion of the court whether the voir dire shall be entrusted to counsel or conducted by the court, and provide that in the latter event the court must permit such supplementary examination by counsel as it deems proper or shall itself submit such additional questions to the prospective jurors.2 Here, in the manner in which the voir dire is conducted, the widest discretion necessarily is reposed in the trial judge.

The present question, of course, is not the allocation of the inquiry between the court and counsel. Nor is there any problem of an interminable examination, an abuse which the Federal Rules were intended to correct.3 What is here involved is the permissible substantive content of the voir dire examination. In this, too, as well as in the procedural area, a wide discretion necessarily resides in the trial court4 which is familiar with the nature of the case, the demeanor of the prospective jurors and the general circumstances which surround the opening of the trial. This "broad discretion as to the questions to be asked" on voir dire is "subject to the essential demands of fairness."5

The questions were rejected because of the court's reliance on an existing local practice of a limited voir dire examination which denies its use to assist counsel in the exercise of the right of peremptory challenge (See colloquy at R. 11) and drastically curtails it in aid of the right of challenge for cause. The rejection of appropriate questions on voir dire for such erroneous reasons amounts to an abuse of discretion. See Bailey v. United States, 53 F.2d 982 (5 Cir. 1931). A jury's impartiality may not be assumed without inquiry, as in the case of a judge. Jurors are drawn from the general body of the community for a short term of service, usually lasting a few weeks, and then return to their customary occupations with neither training nor traditions of impartiality. They must often be unaware of their own disqualification in specific cases, especially since the standards for jury service differ in various parts of the country.6 Litigants therefore have the right, at the least, to some surface information regarding the prospective jurors. Such information may uncover ground for challenge for cause. If it does not, it will be available in the intelligent use of the peremptory challenge,7 which is the antithesis of challenge for cause. The traditional right of peremptory challenge recognizes that matters of bias or prejudice may be sensed or suspected without possibility of proof, and therefore permits counsel to exercise his inarticulate instinctive judgment, which he need not, if he could, attempt to justify.

In Dennis v. United States, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734 (1950), the Supreme Court made it clear that individual bias of a juror was appropriate for inquiry on voir dire, although it reaffirmed its earlier decisions in the Wood and Frazier cases8 that government employment alone should not disqualify jurors in the District of Columbia. The Court said: "The way is open in every case to raise a contention of bias from the realm of speculation to the realm of fact. (p. 168, 70 S.Ct. p. 521) * * * Preservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." (pp. 171-172, 70 S.Ct. p. 523). At the same term the Court in a per curiam opinion reversed a conviction because the trial judge had not permitted defendant's counsel to interrogate prospective jurors who were government employees regarding the possible influence on them of an executive order dealing with loyalty. Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 (1950).

In following a local custom which forbids voir dire examination in aid of peremptory challenge and in effect denies it in aid of challenge for cause the court below deprived the plaintiffs of a necessary and important right, recognized as such by the Supreme Court as recently as Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Court there had occasion to review the development of peremptory challenges and challenges for cause in England and this country. In the course of this review Mr. Justice White said: "In contrast to the course in England, where both peremptory challenge and challenge for cause have fallen into disuse, peremptories were and are freely used and relied upon in this country, perhaps because juries here are drawn from a greater cross-section of a heterogeneous society. The voir dire in American trials tends to be extensive and probing, operating as a predicate for the exercise of peremptories, and the process of selecting a jury protracted. The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. See Lewis v. United States, 146 U.S. 370, 376 13 S.Ct. 136, 36 L.Ed. 1011 Although `there is nothing in the Constitution of the United States which requires the Congress or the States to grant peremptory challenges,' Stilson v. United States, 250 U.S. 583, 586 42 S.Ct. 28, 63 L.Ed. 1154, nonetheless the challenge is `one of the most important of the rights secured to the accused,' Pointer v. United States, 151 U.S. 396, 408 14 S.Ct. 410, 38 L.Ed. 208. The denial or impairment of the right is reversible error without a showing of prejudice, Lewis v. United States, 146 U.S. 370 13 S.Ct. 136; Harrison v. United States, 163 U.S. 140 16 S.Ct. 961, 41 L.Ed. 104; cf. Gulf, Colorado & Santa Fe R. Co. v. Shane, 157 U.S. 348 15 S. Ct. 641, 39 L.Ed. 727. `For it is, as Blackstone says, an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose.' Lewis v. United States, 146 U.S. 370, 378 13 S.Ct. 136 * * * (pp. 218-219, 85 S.Ct. p. 835).

"Indeed the very availability of peremptories allows counsel to ascertain the possibility of bias through probing questions on the voir dire and...

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