By: David Harak, Esq. and Patrice Meredith Clarke, Esq.

The phrase voir dire means “to speak the truth” in French. In the American judicial system voir dire is the process of asking potential jurors questions to determine whether the juror can be fair and impartial. The right to a fair and impartial jury is guaranteed by the U.S. Constitution and the Maryland Declaration of Rights. When a potential juror answers a voir dire question in a way that reveals a bias that constitutes a “specific cause for disqualification” the judge dismisses (or strikes) that juror “for cause.”

However, what happens if a potential juror fails to admit, or is unaware of, a bias? That’s where peremptory challenges are supposed to come in. Peremptory challenges allow the parties to reject (or strike) a potential juror “for a real or imagined partiality that is less easily designated or demonstrable than that required for a challenge for cause.” A “partiality that is less easily designated or demonstrable than that required for a challenge for cause” is synonymous with an implicit bias that would affect the juror’s ability to be fair and impartial. In most jurisdictions, peremptory challenges are exercised after lawyers have had the opportunity to inquire about potential jurors’ backgrounds and experiences through direct one-on-one questioning with individual jurors, questionnaires, attorney conducted voir dire, and/or other methods of ferreting out implicit biases.

Unfortunately, for approximately 120 years, Maryland law has “limited” the purpose of voir dire to questions that are intended to discover a “specific cause for disqualification.” Maryland’s system of limited voir dire falls outside the norm of practically every other state and commonwealth in the nation. Limited voir dire prohibits lawyers and litigants from proposing or posing questions aimed at uncovering implicit biases. Moreover, limited voir dire forces the “unintelligent” exercise of peremptory challenges, inevitably leading some lawyers to exercise peremptory challenges on unconstitutional bases.

Over the last three decades, there have been various unsuccessful efforts to realign the scope of voir dire in Maryland to match that of the federal courts and nearly a unanimity of the states. In September of 2024, however, the Maryland Supreme Court adopted Maryland Rule 16-310, which created the Pilot Program “to implement the use of expanded voir dire” in multiple jurisdictions throughout Maryland and to study the effects of expanded voir dire. The Pilot Program launched on January 1, 2025, and “sunsets” on January 1, 2026.

This article seeks to explain the history of “limited voir dire”in Maryland, the problems associated with Maryland’s voir dire system, and the importance of Maryland’s Pilot Program as the first meaningful step towards improving Maryland’s jury selection process.

Read the entire article here.