NJ Judges Required to Ask Jurors Open-Ended Questions

By Michael Zerres

Erga v. Chalmers – Docket No. A-2632-12T4 – unpublished – Jury Selection/Voir Dire – decided July 16, 2014

This matter arises out of an auto accident trial, wherein the plaintiff sought reversal of a no-cause verdict after the Trial Court failed to ask Question Six from a set of sample jury questions set forth by the Administrative Office of the Courts in Directive #4-07.

During jury selection, the court informed counsel that it intended to ask Question Six in the reverse. Plaintiff’s counsel requested Question Six be read as it appeared in Directive #4-07, explaining that asking the question in the negative would not allow full and frank responses from potential jurors. Even though the defendant did not object to having Question Six read from Directive #4-07, the Court insisted on reading the question in reverse, claiming it would save the Court time during jury selection.

During voir dire, the Court did not ask Question Six, but instead asked potential jurors if they thought they could be fair. The plain language of Directive #4-07 acknowledges that certain information cannot be gleaned from simple yes/no responses. Further, adding time onto jury selection was contemplated and deemed an acceptable price to pay for a fair jury.

Citing case law which held that Supreme Court Directives are binding on trial courts, the Appellate Division ruled that refusing to pose open-ended questions mandated by Directive #4-07 is presumptively unfair and warranted reversal. While the trial court may use its discretion to construct the phraseology of open-ended questions, it cannot use its discretion to refuse to ask any open-ended questions at all.