Darbin v. Nourse

• Decision Date: 28 December 1981
• Docket Number: No. 79-4357,79-4357
• Citation: 664 F.2d 1109
• Parties: Floyd DARBIN, Plaintiff-Appellant, v. George NOURSE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1109

664 F.2d 1109

72 A.L.R.Fed. 627

Floyd DARBIN, Plaintiff-Appellant, v. George NOURSE, Defendant-Appellee.

No. 79-4357.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1981.

Decided Dec. 28, 1981.

Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., for plaintiff-appellant.

John P. Howard, Boise, Idaho, argued for defendant-appellee; Robert A. Anderson, Boise, Idaho, on brief.

Appeal from the United States District Court for the District of Idaho.

Before CHOY, KENNEDY, and REINHARDT, Circuit Judges.

I.

REINHARDT, Circuit Judge:

Appellant, Floyd Darbin, sued his former jailer, George Nourse, in a civil rights action brought pursuant to 42 U.S.C. § 1983. Darbin alleged that, while he was an inmate of the Canyon County, Idaho jail, Nourse, the County Sheriff, assaulted him, battered him and, for several months thereafter, withheld his mail and visitation rights. Following a three day jury trial, a verdict was rendered in favor of Nourse. On appeal, Darbin asserts that the voir dire examination was insufficient to allow him to exercise intelligently his jury challenges for cause and his peremptory challenges.

Prior to trial, Darbin moved for an extended voir dire. He informed the court that most of his prospective witnesses were inmates while most of Nourse's prospective witnesses were police officers. Darbin asserted that "many people subconsciously believe that police officers are more credible witnesses than other persons are and that jail inmates should not sue jail officials." He claimed that he would be unable to make informed decisions with regard to jury selection unless he could probe the prospective jurors' attitudes toward police officers and their testimony and the right of inmates to sue their jailers.

Darbin submitted 53 proposed voir dire questions, inquiring extensively into the prospective jurors' backgrounds, knowledge about jails and views about police officers, jail inmates and other matters. Among the questions submitted was the following:

Some of the witnesses in this case, including the defendant, George Nourse, are police officers. If one of these officers were to say that a certain thing happened and another witness who is not a police officer states that it didn't happen, would you be inclined to believe the police officer just because he is a police officer?

The trial judge denied the motion for extended voir dire, indicating that he would consider the proposed questions, ask those which he thought proper, and remain open to counsel's suggestions for further inquiry at the conclusion of his examination. The trial judge stated: "I'm not going to ask them their views about police officers, unless something arises that shows some prejudice or bias. I might find out whether they have any prejudice against police officers or anyone concerning jail sentence." (Emphasis added).

After calling prospective jurors to the jury box, the trial judge conducted the voir dire himself, as permitted by Rule 47(a) of the Federal Rules of Civil Procedure. The voir dire was rather brief. The court asked each prospective juror to state his name, residence, occupation, and spouse's occupation, and inquired whether any of the prospective jurors had prior jury experience. The court explained that it was the jury's duty to try the case solely on the basis of the evidence adduced at trial and the law as given in the court's instructions. The prospective jurors were asked, as a group, whether they had had any problems with law enforcement officers or prejudice against them, or any prejudice because "somebody may have been incarcerated in a jail." None of the jurors responded. The court then asked the panel whether any juror had been around a jail and whether any juror or his immediate family had had any experience with law enforcement officers or had been victims of a crime. The court also asked whether any of the prospective jurors were related to law enforcement officers. While the trial judge asked some of the questions submitted by Darbin, he did not ask the prospective jurors whether they were more likely to believe the testimony of a law enforcement officer simply because of his official position, nor did he ask the prospective jurors as a group any further questions designed to elicit bias in favor of law enforcement officers or their testimony.

When the trial judge asked whether any jurors were related to law enforcement officers, several jurors replied in the affirmative. These jurors were then asked individually whether "anything about that would tend to prejudice you one way or another in this case?" In one instance, the inquiry was phrased, "Nothing about that would tend to prejudice you one way or another, I take it?" ¹ The trial judge then concluded his examination by inquiring of the jurors as a group whether there was any reason why they could not try the case fairly and impartially on the evidence adduced at trial and the law given by the court.

Following the trial judge's examination of the prospective jurors, he inquired whether either party had additional questions. Darbin requested that the individuals related to law enforcement officers be asked the previously submitted question-whether they would be more likely to believe the testimony of a law enforcement officer simply because of his official position. The court declined to do so. Darbin then renewed his request that all prospective jurors be asked the questions previously submitted in connection with his motion for extended voir dire, including the question just mentioned. The court refused to inquire further of the panel. One juror was removed for cause. Peremptory challenges were exercised and the jury was sworn.

On appeal, Darbin argues that the voir dire did not satisfy the requirements of the seventh amendment. Specifically, he asserts that the trial judge abused his discretion by failing to probe adequately the prospective jurors' attitudes toward law enforcement officers and the rights of prison inmates, and by conducting a voir dire too perfunctory to allow the intelligent exercise of peremptory challenges. We decide the case on non-constitutional grounds. We conclude that the district court abused its discretion and violated the provisions of F.R.Civ.P. 47(a).

II.

The voir dire examination plays a critical role in securing the right to an impartial jury in civil, as well as criminal trials. The principal purpose of voir dire is to probe each prospective juror's state of mind to enable the trial judge to determine actual bias and to allow counsel to assess suspected bias or prejudice. Thus, a voir dire examination must be conducted in a manner that allows the parties to effectively and intelligently exercise their right to peremptory challenges ² and challenges for cause. ³

While the peremptory challenge and the challenge for cause serve the same end, that of securing an impartial jury, they offer the parties two distinct, although complementary, methods of challenging biased jurors. Both types of challenges are important to the effort to obtain a fair tribunal. ⁴ The challenge for cause is narrowly confined to instances in which threats to impartiality are admitted or presumed from the relationships, pecuniary interests, or clear biases of a prospective juror. The peremptory challenge is considerably more extensive in scope. It serves to remove jurors who, in the opinion of counsel, have unacknowledged or unconscious bias. "While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable." Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965). The two types of challenges, in combination, are designed to achieve two important objectives: first, that when a jury is finally chosen it will perform its duties in a fair and unbiased manner; and second, that the parties and the public will have confidence in the impartiality and integrity of the jury.

The trial court must conduct voir dire in a manner that permits the informed exercise of both the peremptory challenge and the challenge for cause. Questions which merely invite an express admission or denial of prejudice are, of course, a necessary part of voir dire because they may elicit responses which will allow the parties to challenge jurors for cause. However, such general inquiries often fail to reveal relationships or interests of the jurors which may cause unconscious or unacknowledged bias. For this reason, a more probing inquiry is usually necessary. In some lawsuits the nature of the case itself suggests that a more specific inquiry is required with respect to particular matters. The nature of the controversy or the relationship and identity of the parties may involve matters on which a number of citizens may be expected to have biases or strong inclinations. If an inquiry requested by counsel is directed toward an important aspect of the litigation about which members of the public may be expected to have strong feelings or prejudices, the court should adequately inquire into the subject on voir dire. The court must not be niggardly or grudging in accepting counsels' requests that such inquiries be made.

The court need not use the question in the precise form suggested by counsel. Nor need a particular question be asked if the substance of the inquiry is covered in another question, differently phrased, or in the voir dire as a whole. Certainly the trial court need not conduct an inquiry which is cumulative.

The content and conduct of the questioning are generally committed to the sound discretion of the district court in both civil and criminal cases. Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953 39 L.Ed. 1033 (1895), Fed.R.Civ.P. 47(a). ⁵ On appeal, we must review the actions of ...