Academic journal article Missouri Law Review

Attorney Duty to Search for Juror Nondisclosure: Missouri Supreme Court Rule 69.025

Academic journal article Missouri Law Review

Attorney Duty to Search for Juror Nondisclosure: Missouri Supreme Court Rule 69.025

Article excerpt

Johnson v. McCullough, 306 S.W.3d 551 (Mo. 2010) (en banc) (per curiam).


The term voir dire derives from the Latin phrase verum dicere, literally meaning "to speak the truth." (1) In American jurisprudence, voir dire has come to mean the pretrial questioning of venire members during which a judge or party is given the opportunity to ask the prospective jurors questions in an attempt to reveal their personal tendencies and possible biases. (2) Missouri courts have held that the right to a fair and impartial panel of twelve qualified jurors is the cornerstone of the judicial system. (3) As such, it is the duty of prospective jurors on voir dire examination to "fully, fairly, and truthfully answer all questions so that qualifications for service may be determined and challenges properly exercised." (4) Or, more simply, they must speak the truth.

Yet, history has shown that jurors are often not wholly honest and forthcoming when answering questions during voir dire, despite being under oath. (5) one study of Illinois criminal trials found that almost one in five prospective jurors withheld information during questioning. (6) Within civil trials, a recurrent issue before Missouri courts is whether a prospective juror's nondisclosure of prior litigation has led to an unfair verdict. (7)

Besides physically searching through thousands of court documents shelved in a clerk's office or waiting days for a response from an indexing bureau, disclosure during voir dire traditionally had been the only means by which a Missouri attorney could learn of a juror's prior litigation history. But with the advance of Internet technology and Missouri's subsequent implementation of an automated court record system through, Missouri attorneys now have a free and potentially easy means to search a prospective juror's litigation experience. (8)

In an attempt to reduce the number of retrials granted due to juror nondisclosure, the Supreme Court of Missouri mandated in Johnson v. McCullough that counsel search prospective jurors' litigation history on and bring reasonable suspicion of juror nondisclosure to the trial court's attention prior to jury empanelment. (9) An official court rule explaining the requirement was issued shortly after the Johnson decision, and it became effective on January 1, 2011. (10)

It is uncertain if Missouri trial courts can interpret the rule in a way that minimizes the burden on attorneys to perform a search while still maintaining the rule's purpose--averting the need for retrials due to juror nondisclosure of prior litigation experience. The rule explicitly requires attorneys to search a juror's litigation history on if they desire to preserve their clients' rights to post-trial relief for juror nondisclosure. (11) If attorneys have reasonable grounds to suspect juror nondisclosure after this search, they must bring the matter to the trial court's attention. (12) What the rule leaves unclear, however, is how exhaustive a search must be and how much evidence is needed to produce "reasonable grounds" for suspicion.


In April of 2008, following a unanimous jury verdict, the Circuit Court of Jackson County entered judgment in favor of Dr. J. Edward McCullough in a medical malpractice action brought by McCullough's former surgical patient, Phillip Johnson. (13) During voir dire, jurors were asked by Johnson's counsel, "Now not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?" (14) While others answered affirmatively, venire member Maxine Mims remained silent. (15) Following the initial juror disclosures to the question, counsel asked the question again, "Now did I miss anyone here? I just want to make sure. No other people that have been, not including family law, a plaintiff or a defendant on any case? Let the record reflect that I see no additional hands. …

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