“The Jury” by John Morgan / Wikimedia Commons
If you’re an American and you’ve ever served on a jury — or at least been through the jury selection process (as I’ve done in the last couple of days) — you’ll be very familiar with the term voir dire. It’s the name (at least in America) of the process all prospective jurors have to go through to be selected to serve on a particular trial. And the attorneys asking all those probing questions might well explain by way of introduction the origins and meaning of that curious name, voir dire, as a translation of the two modern French verbs: “to see [them] say.” At which point, you might as a prospective juror want to jump up from your seat and shout “Objection!” (Or you might not, since you probably don’t want to be rejected from the jury for being a jerk.)
The word voir in this context — i.e. paired with the word dire — isn’t in fact related to the modern French verb meaning “to see”, as so many people assume nowadays, but instead comes from Old French and derives from the Latin word verum, “that which is true’. In Latin, verum dicere means “to tell the truth.” If anything it’s related to the modern French word voire, meaning “indeed” — and hence the legal term is sometimes spelled voire dire. This confusion of voirs has led historically to what’s called a false etymology, whereby lawyers and jurors all over America think the process is about seeing and witnessing the jurors speaking, when it’s really all about them telling the truth.
Voir dire is a legal phrase that refers to a variety of procedures connected with jury trials. It originally described an oath taken by jurors to tell the truth, and it was coined back in the 1670s. Fast forward three-and-a-half centuries, and while in the U.S. it’s still very much a jury-oriented term, referring most often to the process by which prospective jurors are questioned about their backgrounds and potential biases before being chosen to sit on a jury, in the UK (except Scotland) and some Commonwealth countries, it describes more generally a “trial within a trial”: a hearing to determine the admissibility of evidence, or the competency of a witness or juror. As the subject matter of the voir dire often relates to evidence, competence or other matters that may lead to bias on behalf of the jury, the jury is often removed from the court for the voir dire in these countries. Which might explain why jurors of British or other non-American nationalities might not have even heard the term, let alone know or understand where it comes from.
* * *
With reference to the last part of this helpful entry., In the United States, the practice of cross examining a witness during trial on his qualifications to render an expert opinion on a particular point or in a certain field, is still called a voir dire. The same is true for lengthier side track examination of fact witness’ competency or personal knowledge about a relevant issue in the case.
Example:
“Your Honor, may I have a voir dire to help determine whether this witness from the Psychiatric Institute understands the nature of his oath, and is therefore competent to testify under state law.
Thanks, Paul. Very interesting and helpful.
All best,
Louise
This etymology of voir dire is a theory which well serves the manipulation of juries by judges. Jurors take an oath to tell the truth by rendering a verdict, which comes from the Latin “veredictum.”
It is much more likely that the process of examining jurors for potential bias, now called voir dire, actually does come from the French verbs translated as “to see” and “to speak.” The words are also used to describe the process of examining a witness regarding what they know about a proposed exhibit. Attorneys wishing to question a witness about the foundation for an exhibit, are taught to ask the court: “may I voir dire [the witness] on the exhibit.
To see and to speak – that is what happens when jurors are examined for bias, and when witnesses are questions about the foundation for an exhibit.
When jurors are selected secretly, out of court, they are not subject to voir dire, but they are still sworn to render a verdict, i.e., to speak the truth.
I wasn’t around when the Normans conquered England and imposed their legal system on top of the English system, so I can’t say for sure when the term voir dire came into use, and who introduced it.
I can say it is highly unlikely that the Latin veredictum was translated into voir dire, since it was so obviously translated – in English – as verdict.
Languages are twisted by lawyers and judges, to suit their purposes. The purpose of courts is to control and manipulate jurors, while presenting the appearance of a fair and public proceeding. Regardless of who is right on the “original” meaning of voir dire, the voir dire process has been corrupted to serving the objectives of the court, which, so often, is to select a compliant and obedient jury which will succumb to the control of the judge.
Paul
I have arrived here as this now seems to be the primary reference on the Wikipedia entry for ‘voir dire’ as I was hoping to find some evidence of this confused etymology. I find it difficult to square the idea of ‘verum dicere’ or similar being corrupted into ‘voir dire’ .
In addition when I look at a further, much older, reference from Wikepedia, there seem to be genuine issues with the derivation proposed. In Blackstone’s Commentaries on the Laws of England. Book 3, Ch. 23. p. 394. (example link https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-323/) there are two sentences containing the phrase voir dire
1. A juror may himself be examined on oath of voir dire, veritatem dicere [speak truly], with regard to the three former of these causes of challenge, which are not to his dishonor; but not with regard to this head of challenge, propter delictum, which would be to make him either forswear or accuse himself, if guilty.
2. Interested witnesses may be examined upon a voir dire, if suspected to be secretly concerned in the event; or their interest may be proved in court.
What can I infer from that? First, I would say that the terms voir dire and veritatem dicere were extant at the same time, so one did not turn into the other. Second, I would say that voir dire describes a bigger process of examination which contains an oath to speak the truth, veritatem dicere.
In the absence of any genuine evidence of transformation of veritatem dicere to voir dire, I would contend that this simpler idea (of veritatem dicere being the oath within a voir dire) is more consistent with historical evidence
Pingback: The Credibility of Child Witnesses – The Criminal law Blog
I don’t think Louise is right. https://etymologeek.com/fra/voir says that “voir” comes from the Latin “video.” https://en.wiktionary.org/wiki/voir is similar. A French etymology, https://www.littre.org/definition/voir, says the word comes “du latin vidēre .” Any of these etymologies is far from “verum.”
I agree with Mr Austin that there is no reason Blackstone would use voir-dire and the Latin that clearly means “to speak the truth” in the same sentence. The word “or” appears 184 times in Blacksone’s Chapter 23, and yet he separated voir-dire from veritatem dicere with a comma.
The term was originally voire-dire. See Mozley & Whiteley’s Law Dictionary. (1908). London. Butterworth & Company:
VOIR DIRE or VOIRE DIRE (Lat. Veritatem dicere). An examination of a witness upon the voir dire is in the nature of an examination***
VOIRE did mean “truly” in French at least as late as the 1906 edition of Petit Larousse illustre. https://books.googleusercontent.com/books/content?req=AKW5QafhH9sNY8SabUEpTEZlEWQoksqlBlgnFM8CYiUKq2aeETGJurxf_-IFVLmsEesaDvIeeL8wn4A-pynQMLWNRHvqtzbeF57VzRhYp1oW4QLIuqANB64jbSQUdmsxJmKsQMu5Vb0Ol3VjfvQYIHqHNsgUqL8gjQEieC2ToEaoYezpidk2pNKYSPnzJROXkwnrpCkWBRHTqLwdenVmS-Sb36O2AJKpD0S7YE5kv-vJLww6l0ePJQznxXRAiQhbBZqYv_VIFc1iJm0zDyY9vo8tAPjtlPw6dA