Voir dire: to see them say, or to tell the truth?

“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.

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