Question: Can trial attorneys ask prospective jurors hypothetical questions?
Answer: Yes, see below.
A trial judge has discretion to permit voir dire questions formulated to evoke jurors’ attitudes relevant to the charged offense which do not suggest prejudicial evidence not adduced at trial. Attorneys are not prohibited from inquiry into jurors’ preconceived notions regarding a line of defense or theory of the case intended to be used during the trial. The function of voir dire examination is not to educate jurors, but to ascertain whether jurors can render a fair and impartial verdict in accordance with the law and the evidence. Questions which seek to shape a favorable jury by deliberate exposure to the substantive issues in the case are improper. A trial court has broad discretionary power to regulate the form and substance of voir dire. Yet the court has competing concerns during voir dire. It must be mindful that jurors are to be examined to eliminate bias but not to condition them to be receptive to the questioner’s position. Conversely, it must afford each party reasonable opportunity to exercise his peremptory challenges intelligently through inquiry.
Further, proper examination does include questions designed to disclose the jurors’ attitudes about the type of offense charged. To make these determinations, the parties may pose hypothetical questions, provided they do not suggest prejudicial evidence not adduced at trial.