Rousseau v. West Coast House Movers

• Decision Date: 13 December 1967
• Citation: 256 Cal.App.2d 878,64 Cal.Rptr. 655
• Court: California Court of Appeals Court of Appeals
• Parties: Woodrow ROUSSEAU, Plaintiff and Appellant, v. WEST COAST HOUSE MOVERS et al., Defendants and Respondents. Civ. 29915.

Page 655

64 Cal.Rptr. 655

256 Cal.App.2d 878

Woodrow ROUSSEAU, Plaintiff and Appellant, v. WEST COAST HOUSE MOVERS et al., Defendants and Respondents.

Civ. 29915.

Court of Appeal, Second District, Division 2, California.

Dec. 13, 1967.

Hearing Denied Feb. 8, 1968.

Rainer & Moriarity, North Hollywood, by Robert J. Jagiello, North Hollywood, for appellant.

Hagenbaugh, Murphy & Medearis, Van A. Hagenbaugh and Ronald L. Katsky, Los Angeles, for respondent, West Coast House Movers.

FLEMING, Associate Justice.

Suit for personal injuries by Rousseau, an employee of the Board of Education, and by the State Compensation Insurance Fund as intervenor, against West Coast House Movers. From a jury verdict in favor of defendant, Rousseau appeals.

Voir Dire

Rousseau claims prejudicial error in the selection of the jury because the court itself conducted the interrogation of prospective jurors on their voir dire examination. He contends the court should have tendered counsel the opportunity to conduct an interrogation of prospective jurors, and in support of his argument he cites Rule 228 of California Rules of Court:

'In civil jury trials, it shall be the duty of the trial judge to examine the prospective jurors to select a fair and impartial jury. He shall permit reasonable examination of prospective jurors by counsel for each party.'

Neither specifically nor generally do we find prejudicial error in the selection of the jury.

The following procedure was used by the trial court in selecting the jury. The trial judge advised counsel in chambers that he would conduct the examination of prospective jurors, and that counsel should submit questions to the court before and during the examination for use in the interrogation of prospective jurors. After the jury panel was sworn and twelve prospective jurors were seated in the jury box, the trial judge told the remaining members of the panel to pay close attention to the questions asked of the jurors in the box since if called to the jury box they would be asked whether they had heard the previous questions and whether their answers would differ from those given by their predecessors. The trial judge then advised the panel of the general nature of the cause to be tried, and proceeded to question the prospective jurors in the box. The questions covered prior knowledge of or contact with the parties or their attorneys; knowledge of the facts of the case; the reality of pain and suffering; experience in adjustment of claims; racial, ethnic, and religious prejudice; prior injuries; current litigation; ability to apply the law as given by the court; occupations of the jurors and their spouses; prior jury service; and other subjects relating to the prospective jurors' ability to try the case fairly and impartially. From time to time particular questions were asked of prospective jurors at the instance of counsel. Rousseau's counsel did not object to any of the questions. Nor is there any record of specific questions Rousseau sought to have propounded to the jury panel or to individual jurors which were refused by the court. As peremptory challenges were exercised, new jurors in the box were asked if they had heard the previous questions and if their answers to the questions would be the same as those previously given. At the conclusion of the examination both sides announced their acceptance of the jury as constituted, and the jury was sworn.

Specifically, there is nothing in the record to show that counsel for plaintiff took exception at the time of the jury's selection to the manner in which the jury examination was conducted. To the contrary counsel announced at the time the trial jury was sworn that plaintiff accepted the jury as constituted. Only after an unfavorable verdict did plaintiff register a complaint against the conduct of the jury examination, a complaint which obviously then came too late. Rousseau's failure to except at the proper time to the conduct of the examination and his inability to specify particular questions which he sought to have asked and which were refused, preclude a subsequent attack on the procedure followed in the trial court, since the claimed errors would have been readily curable if a timely objection had been taken. (People v. Ah Lee Doon, 97 Cal. 171, 176, 31 P. 933; People v. Sanford, 43 Cal. 29, 31--32.)

Yet because Rousseau has vigorously challenged the method used by the trial court in conducting the examination of prospective jurors, we do not rest our decision solely on his failure to except to the procedure and his failure to request particular interrogatories for prospective jurors, but take up the general question of appropriate procedures in the selection of a jury. It appears to be plaintiff's contention that he had an absolute right to conduct a direct interrogation of prospective jurors during the empanelment of a jury. In evaluating this contention we examine the origins of Rule 228, and, in view of the rule's derivation from the criminal law and the paucity of decisions in civil cases on the conduct of jury examination, we turn to precedents in the criminal field.

California Rules of Court, Rule 228 for civil jury trials in superior courts and Rule 516 for trials in municipal courts, follow the text of Penal Code, section 1078, adopted in 1927, which reads:

'It shall be the duty of the trial court to examine the prospective jurors to select a fair and impartial jury. He shall permit reasonable examination of prospective jurors by counsel for the people and for the defendant.'

How is the duty of the trial court to select a fair and impartial jury to be carried out? What examination of prospective jurors is to be made for what purposes? Who may be entrusted with the actual conduct of the examination? Does examination of prospective jurors by counsel require direct interrogation by counsel or may the presentation of counsel's questions through the medium of the court suffice?

We start our discussion with some consideration of the basic purpose to be served by interrogation of prospective jurors. At common law, and in England today, such interrogation of prospective jurors is unknown. (Voir Dire Examination of Jurors, the English Practice, 16 Georgetown L.J. 438, 442--445.) But California has long permitted examination of prospective jurors in order to determine whether a basis for challenge for cause exists. Such examination is not for the purpose of determining the exercise of peremptory challenges (People v. Edwards, 163 Cal. 752, 754--755, 127 P. 58; People v. Ferlin, 203 Cal. 587, 598, 265 P. 230; People v. Rigney, 55 Cal.2d 236, 244, 10 Cal.Rptr. 625, 359 P.2d 23; People v. Deriso, 222 Cal.App.2d 478, 486--487, 35 Cal.Rptr. 134), although occasional dictum has loosely supported such a purpose (People v. Boorman, 142 Cal.App.2d 85, 91, 297 P.2d 741). Neither is it a function of the examination of prospective jurors to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law. Such activities are taken care of by other phases of the trial, such as opening statements of counsel, presentation of proof, final arguments of counsel, and instruction in the law by the court. (See People v. Love, 53 Cal.2d 843, 3 Cal.Rptr. 665, 350 P.2d 705 (disapproving questions about prospective jurors' knowledge of the law); People v. Mitchell, 61 Cal.2d 353, 366, 38 Cal.Rptr. 726, 392 P.2d 526 (disapproving argumentative questions to the jury panel).)

We next consider the mechanics of the conduct of the examination of prospective jurors. Neither Penal Code, section 1078, nor the California Rules of Court specify the manner in which the examination of prospective jurors by court and counsel shall be conducted or the procedures to be used in selecting a fair and impartial jury. Historically, examination may be oral or written, direct or indirect. For example, under the original equity and admiralty procedures all examination of witnesses was conducted in writing. (Wigmore on Evidence, § 799.) Our own discovery rules recognize two classes of depositions, those taken by oral examination, and those taken by written interrogatories. (Code Civ.Proc. § 2016.) Unlike Federal Rules of Civil Procedure, Rule 47, and Federal Rules of Criminal Procedure, Rule 24, both of which refer to the 'conduct of the examination' of prospective jurors, our rules are silent on the subject of the conduct of the examination and merely refer to 'examination' of prospective jurors without specifying any particular mode of examination.

As a consequence of this lack of specification considerable flexibility in the manner of jury selection is possible under California procedure. (People v. Brown, 207 Cal. 172, 179, 277 P. 320; West Coast Securities Co. v. Kilbourn, 110 Cal.App.2d 293, 297, 294 P. 57.) Clearly, the responsibility for securing a fair and impartial jury has been placed on the trial judge, who is charged with the duty to examine prospective jurors. He must also permit reasonable examination of prospective jurors by counsel. The grand objective of the examination is to elicit information from prospective jurors which will permit the exercise of challenges for cause in order to arrive at a fair and impartial jury. But the specific methods to achieve this objective have not been prescribed, and several different procedures are feasible. These include:

1. The court may turn all interrogation over to counsel and delegate to counsel the conduct of its examination of prospective jurors.

2. The court may conduct an initial examination of prospective jurors and then permit counsel to conduct a general examination of prospective jurors.

3. The court may conduct an initial examination of prospective jurors and then permit counsel to conduct an...