Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System

36 Pages Posted: 16 May 2015

See all articles by Vida Johnson

Vida Johnson

Georgetown University Law Center

Date Written: April 12, 2015


The American criminal justice system is built on three bedrock principles: the presumption of innocence, the burden of proof, and the standard of proof beyond a reasonable doubt. These ideals, however, are frequently ignored by jurors. Social science research has shown that jurors routinely believe that a defendant must prove his innocence, and that the mere fact that the defendant is standing trial is proof of guilt. Jurors persist in these beliefs despite proper instructions on the law.

Despite the acknowledged centrality of these legal ideals, trial courts in many jurisdictions, routinely prevent defense attorneys from questioning prospective jurors on these fundamental legal issues based on a mistaken view that jurors will follow the given instructions. Unlike instructions, voir dire regarding prospective jurors’ ability or willingness to apply the presumption of innocence and hold the government to its burden of proof beyond a reasonable doubt is not granted uniformly across jurisdictions. While the Supreme Court has sanctioned voir dire in capital cases on whether jurors can impose the death penalty, it has thus far remained silent on whether there is a right under the Due Process Clause to question prospective jurors on the presumption of innocence and the government’s burden of proof of beyond a reasonable doubt. The states and federal circuits are split on the question.

This Article explores whether, in order to ensure fundamental principles of fairness, voir dire questions about the presumption of innocence and the burden of proof should be required in all criminal jury trials.

Suggested Citation

Johnson, Vida, Presumed Fair? Voir Dire on the Fundamentals of Our Criminal Justice System (April 12, 2015). Seton Hall Law Review, Vol. 45, No. 2, 2015, Available at SSRN:

Vida Johnson (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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