Voir Dire and Peremptory Challenges

Voir Dire and Peremptory Challenges

     The purpose of this short blog is simply to shed some light on some of the Nevada rules regarding jury voir dire in civil trials.  In Nevada, both sided of the case are afforded unlimited for cause challenges followed by four peremptory challenges.  If there are multiple parties on one side of the case, and these parties have diverse interests then the court may allow up to four peremptory challenges per party.  Note that the parties are free to stipulate to allowing one another to exercise more than the normal and customary four peremptory challenges.  This could be a decidedly useful tool for plaintiff’s counsel if he or she can persuade defense counsel to stipulate to as much.  In addition to the four general peremptory challenges each side is also afforded one peremptory challenge for every two alternate jurors empaneled.

     Know that a right to effectuate a peremptory challenge is not guaranteed to the same extend as the right to exercise for cause challenges.  Thus the trial court can be more restrictive in limiting counsel’s ability to voir dire for purposes of establishing peremptory challenges than such court can be in limiting a line of questioning directed at a for cause removal.  Thus under scrutiny of the trial judge perhaps demonstrate that your line of questioning is directed towards a for cause challenge even if it may be a useful line of questioning for establishing a peremptory challenge. 

     Although a peremptory challenge can be used to strike potential jurors from the venire for most any reason, not all reasons are fair game.  For instance, counsel is not permitted to exercise such challenge on the base of race or gender.  If one party raises what we call a Batson challenge, based on the Batson v. Kentucky, 476 U.S. 79, 84 (1986) which prohibits the state from exercising a peremptory challenge based on race, then it becomes incumbent on the accused party to provide a gender or race-neutral explanation for the challenge. 

     Just as counsel may agree to allow more than the usual four peremptory challenges, counsel may also agree to a jury panel consisting of less than the customary eight jurors.  The parties cannot limit the jury panel to less than four members however.  Remember, as counsel in Nevada, that it is possible to have your jurors visit the place of the incident which is the subject matter of the litigation.  This might be a highly effective tool for trial counsel.  However, this mechanism is within the trial court’s discretion.  When making this determination the court should consider whether there is other available evidence which would give the jurors a clear understanding of the fact pattern involved, other than an in person visit. 

     We are fortunate in Nevada that jurors have the right to ask questions during the trial process.  This jury questioning is again within the discretion of the trial court.  Of course there are limitations as to how these questions may be asked.  These questions must be made by the jurors in writing and must be factual in nature, designed to clarify information already presented as evidence.  In addition to this right of the jurors to ask question during trial they are also eligible to ask questions during deliberations.  Thus if the jurors are uncertain as to the nature of presented testimony they can be brought into the courtroom so that the court reporter can repeat the requested testimony back to the jurors.  The right to have testimony read back to the jurors is again within the sound discretion of the trial court.  Additionally, the jurors may ask to be brought to the presence of the judge in the event that they have any ambiguity as to a point of law in the case.    Thus be sure to advise your jurors to call for the judge in the event there is a co-juror who is unwilling to follow the law  Often times jurors don’t understand the law even when the believe they do. 

     Another right afforded to our jurors here in Nevada is that of the right to take notes in trial.  This right is conditional upon the trial judge permitting as much.  This is an excellent tool for plaintiff’s counsel.  When you teach your case urge your jurors to take notes.  In this way your jurors retreat into deliberations well-armed with notes needed to support their positions.  You may want to think about filing a pretrial motion for the purpose of confirming the right of your juror’s to take notes during trial.

     In Nevada, you need a vote by three fourths of the jurors to decide a case.  There has been question in the past regarding whether a juror who does not agree with the jury’s findings as to liability can subsequently participate in deliberations on the issue of damages.  The Nevada Supreme Court in Canterino v. MirageI, 117 Nev. 19, 16 P.3d 415 (2001) determined that every juror empaneled is “required to consider and decide each of the issues submitted to them by the trial court.”  Thus jurors who find themselves at odds with the remaining jurors on one issue may not be excluded from considering the other issues of the case.