Occasionally, we'll have a defense lawyer request to take the witness on voir dire. What they really mean is "can I cross-examine the witness before its my turn". Objections to this don't seem to have any effect on my judge.

I am looking for any authority that limits the scope of this nonsense or forbids it outright

It is always proper if needed to establish a predicate for an objection. But the predicate facts should usually be pretty limited and the examination limited to that scope. What you often end up with is several questions, and then the statement: "no objection". May be hard to find caselaw since the whole thing is pretty much at the discretion of the court. If the questions have any relevance they are likely to be asked sooner or later anyway, but this tactic can interrupt the flow of things for sure.

What did you say when you objected?

Have you tried a speaking objection? Something of a paragraph rather than a one word rule citing?

"Your honor, I object to his/her question as to the limited scope of a voir dire. Her/his questions must remain in line with the objective: a foundation for an objection. This question is irrelevant to this scope-limited procedure."

If not, try, "Objection, may we approach." Then recycle the above phrased idea.

Beyond that, I'd try heading the Defense Attorney off by anticipating the objection and laying the groundwork yourself before the sneaky weasel can hop right in.

"Now you haven't done Blah, or Blah have you? Have you studied Blah or Blah? Well, why doesn't that disqualify you as an expert in the analysis of Blah? Specifically, how does your extensive experience in Blah, Blah, and the study of Blah relate to this specific circumstance?"

I understand the frustration. I've had that happen to me before. But, I've hopped into the middle of a defense attorney's direct examination of their DWI intoxilizer "expert." I actually really enjoyed breaking up his direct.

Is this sort of questioning OK to do in front of the jury?

The rules of evidence 705 covers voir dire of experts outside the presence of the jury.

Today I sat in county court and watched a defense attorney do this four times to lay witnesses and he seemed to go on for 10 minutes each time. He was asking witnesses to list all the things that they might have personal knowledge of and then asking for their interpretations of the law. Did I mention these were laymen?

Surely if the rules of evidence address voir dire examinations of expert witnesses then there should be instructions SOMEWHERE for voir dire examination of the laity??!

Is it really just all at the discretion of the court?

Rule 705 allows a voir dire examination outside the hearing of the jury for the purpose of testing the admissibility an EXPERT opinion based on the quality of the facts she used reach her conclusions.

I looked all through the rules of evidence and found no mention of voir dire examinations of lay witnesses.

Shugars v. State is the best case that I've found so far and its logic goes something like this:
1. Rule 103(c) says that the court should take steps to prevent the jury from hearing inadmissible testimony.

2. Rule 602 says that a lay witness can only testify to personal knowledge.

3. Therefore, a voir dire examination outside the presence of the jury may be appropriate in order to develop an objection as to the admissibility of lay witness testimony.


In my imagination it works something like this:
State: You were with Charlie and Lester at work that day?
Witness: Yes, they were feuding all day.
State: What happened after work?
<< Defense request for voir dire examination is granted >>
Defense: Were you actually with Charlie and Lester after work?
Witness: No I went home at 5pm, Lester called me at 8pm and told me about it.
<< End of voir dire >>
Defense: We object that this witness can only give hearsay testimony about what happened after work.

In this hypothetical exchange, the Defense has reason to suspect the witness is about to give inadmissible testimony. The purpose of the voir dire examination, like Philip D Ray said above, is to develop an objection that will prevent the jury from hearing the inadmissible testimony. An admonishment to disregard only goes so far.

Frankly, I don't see why the jury couldn't stay if the examination is short and on topic.

In the trial I watched yesterday the real life defense attorney didn't limit himself like my imaginary guy above. Instead this guy repeatedly hijacked State's Direct, in front of the jury, for up to 10 minutes at a time.

If voir dire of lay witnesses is allowed based on commonly accepted knowledge rather than the Rule of Evidence then Martin Peterson is correct when he says it is within the discretion of the court.

The door of discretion swings both ways! Philip's objection would be raised during the voir dire when Defense exceeds the narrow bounds of determining admissibility of the current testimony. Anything else belongs in cross-examination.

Actually, it SEEMS like the State could withdraw the question that Defense is using as the grounds for voir dire and thus prevent the potential hijacking altogether. You could then circle back around to the issue being careful to lay the proper foundation so there is no legitimate question of admissibility. But don't take my word for it, I'm just a curious laymen.


PS: Since voir dire examinations of laymen is an accepted practice, perhaps the Rules of Evidence should be amended to include them.