DOJ-OGR-00005217.pdf

--- Page 1 --- **Case 1:20-cr-00330-PAE** **Document 342** **Filed 10/13/21** **Page 12 of 17** **Case 1:20-cr-00330-PAE** **Document 342** **Filed 10/13/21** **Page 12 of 17** counsel is not afforded an opportunity to gain the necessary information upon which to base such strikes."). Without the opportunity for counsel to effectively probe for hidden prejudices, it would be difficult to accomplish the goal of exercising sensitive and intelligent peremptory challenges. A. The Attorneys Have More In-Depth Knowledge of the Case It is counsel, not the Court, who is in the best position to obtain the information necessary to exercise intelligent peremptory challenges through attorney-conducted voir dire. The attorneys have more in-depth knowledge of the case than the Court. See, e.g., United States v. Cleveland, 1997 WL 2554 at *3 (E.D. L.A. Jan. 2, 1997). Important follow-up questions are more likely to occur to an advocate than a judge for several reasons, including the fact that a judge "does not have the advocate's awareness that soon [s]he will be making peremptory challenges based on inferences from what prospective jurors have said" and the fact that "the judge does not know the case of either party in detail, so that [s]he cannot realize when responses have opened areas for further inquiry."2 As the Fifth Circuit has recognized: A judge cannot have the same grasp of the facts, the complexities and nuances as the trial attorneys entrusted with the preparation of the case. The court does not know the strength and weaknesses of each litigant's case. Justice requires that each lawyer be given an opportunity to ferret out possible bias and preclude of which the juror himself may be unaware until certain facts are revealed. Ledee, 549 F.2d at 993 (citing Frates and Greer, Jury Voir Dire: The Lawyer's Perspective, 2 A.B.A. Litigation No. 2 (1976)). Indeed, the Fifth Circuit later amplified this concept, stating that "voir dire may have little meaning if it is not conducted at least in part by counsel." While Federal Rules [sic] of Criminal Procedure 24(a) gives wide discretion to the trial Court, voir dire may have little meaning if it is not conducted at least in part by counsel. The "federal" practice of almost exclusive voir dire examination by the Court does not take 2 Babcock, Voir Dire: Preserving "Its Wonderful Power", 27 Stan. L. Rev. 545, 549 (1975). **11**