DOJ-OGR-00005251.pdf

Case 1:20-cr-00330-PAE Document 355 Filed 10/18/21 Page 2 of 5 Page 2 292 F.3d at 128; see also United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 1994) (stating that a district court has "broad discretion whether to pose a defendant's requested voir dire questions"). Although the Federal Rules of Criminal Procedure contemplate that district courts may exercise that discretion by permitting counsel to conduct the questioning of potential jurors, see Fed. R. Crim. P. 24(a), the usual practice is for the court to conduct its own questioning, and federal courts generally have resisted efforts by counsel to expand their own role. See, e.g., Lawes, 292 F.3d at 128 (noting the "long struggle between bench and bar" over juror questioning and observing that "federal courts have successfully resisted such attempts" by counsel to have a greater role). Courts are generally resistant to such efforts because "[c]ourt and counsel have somewhat different goals in voir dire." Id. As the Second Circuit has observed: The court wants a fair and impartial jury to be chosen and to move expeditiously to the presentation of evidence. Counsel want a jury favorable to their cause—fair or not—and voir dire aids them in exercising peremptory challenges and challenges for cause. Counsel have an additional purpose in voir dire moreover and that involves exposing jurors to various arguments they intend to make at trial. Counsel view voir dire as an opportunity for advocacy similar to, albeit not the equivalent of, openings or summations. Id.; see also United States v. Barnes, 604 F.2d 121, 138 (2d Cir. 1979) ("[T]he purpose of the voir dire is to ascertain disqualifications, not to afford individual analysis in depth to permit a party to choose a jury that fits into some mold that he believes appropriate for his case." (quotation marks and citation omitted)). The defendant offers no persuasive reason to abandon the customary practice in this District,1 and of federal courts generally, and to adopt an alternative procedure for this case. The 1 See, e.g., United States v. Saipov, No. 17 Cr. 722 (VSB), 2020 WL 958527, at *1 (S.D.N.Y. Feb. 27, 2020) (rejecting defendant's arguments for attorney conducted voir dire in capital case); United States v. Barone, No. 09 Cr. 91 (NRB), 2010 WL 2976505, at *1 (S.D.N.Y. July 9, 2010) (declining to permit attorney-conducted voir dire); United States v. Wilson, 571 F. Supp. 1422,