Back in May 2007, the New Jersey Administrative Office of the Courts (“AOC”) issued a directive (Directive #4-07) to all trial court judges that required that some open-ended questions be asked of jurors during the voir dire process. In New Jersey, only the judges can question prospective jurors. The purpose of this directive was to ensure that jurors verbalize their answers so that the court, the attorneys, and the litigants can better assess their attitudes and any possible bias or prejudice, which is not evident from a yes or no answer. In Erga v. Chalmers, 2014 N.J. Super. Unpub. LEXIS 1730 (App. Div. July 16, 2014 ), a no cause jury verdict was reversed because the judge failed to ask any open ended questions during the voir dire process.
Erga involved an expedited jury trial arising out of a motor vehicle accident. The plaintiff’s counsel requested that sample question no. 6 from the directive be posed to the jury. This question inquired: “Do you believe that you will make a good juror for this case? Please explain.”
The judge refused to ask the question as it was suggested by the AOC because he was apparently concerned as to the length of the jurors’ answers and how that would impact the time to complete juror selection. Instead, he asked it the reverse: “if there’s some reason why they feel they can’t be a good juror.” The plaintiff’s counsel objected because, by asking the question in the negative, no one would say no and it would not serve its purpose of having the jurors respond with at least a several sentence answer.
The jury returned a no cause verdict and the plaintiff filed this appeal. The defendant argued that the plaintiff must come forward with some evidence that the process employed was biased or unfair before a reversal was merited. However, the Appellate Division found that the court’s refusal to ask any open-ended questions, as mandated under this directive, was presumptively unfair and warranted a reversal.
The court pointed out that this was not a situation where the court asked some open-ended questions but phrased them differently than the AOC sample questions. The phraseology of the open ended-ended questions was to be left to the discretion of the trial court. However, what is not discretionary was the failure to ask any open-ended questions. Thus, the Appellate Division vacated the judgment entered in favor of the defendant and remanded the case back to the trial court for a new trial with jury selection to comply with Directive #4-07.
