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Although the voir dire of jurors is one of the most significant mechanisms by which an impartial jury is secured, as a practical matter the right to examine prospective jurors is not unlimited. Vested with great discretion, a trial judge may at some point constitutionally preclude inquiry into possible prejudice, but determining that point has not proved to be easy. In 1976, the Supreme Court in Ristaino v. Ross directly considered the constitutional limits to voir dire and provided a test which could serve as a guide to trial court administration of the process. The Court suggested that questioning about prejudice must be allowed only in situations where there is some “nexus” between the prejudice feared and the issues likely to arise at trial. In reaching this conclusion the Supreme Court made significant departures from prior analyses of voir dire. Not only did the Court establish an extremely narrow constitutional right to inquire into prejudice, but by focusing on the issues at trial, rather than the prejudice of the venire-people, it demonstrated an extraordinary tolerance with prejudice among the jurors who decide a case.

Determination of the constitutional limits to voir dire and the right to an impartial jury involves a complex amalgam of competing interests, but at bedrock rest certain assumptions about the nature and operation of human prejudice. In Ross, those interests and assumptions led to several basic conclusions. First, the racial identity of the parties will not be sufficient, in and of itself, to require that questioning into the racial prejudice of venire-people be allowed. Second, the focus for the trial court in determining whether inquiry must be allowed will be on the nature of the trial and the issues presented and not on the individuals who may act as jurors. Finally, the Court expressed concern with factors that will intensify any prejudice held by jurors and increase the likelihood that their function as fact finders will not be adequately performed.

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University of Colorado Law Review

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