FLORIDA SUPREME COURT
JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 99-08

Date of Issue: March 9, 1999

WHETHER A JUDGE MAY PERMIT LAWYERS TO INQUIRE OF MEMBERS OF THE VENIRE REGARDING MATTERS WHICH DIRECTLY OR INDIRECTLY SEEK TO ELICIT INFORMATION REGARDING THEIR RELIGIOUS BELIEFS?

ISSUE

Whether a judge may permit lawyers to inquire of members of the venire regarding matters which directly or indirectly seek to elicit information regarding their religious beliefs, assuming that religion is not otherwise an issue in the proceeding?

Whether a judge may permit an attorney to inquire as to whether prospective jurors hold

1) particular religious beliefs?

2) particular moral beliefs?

Whether a judge may permit an attorney to inquire as to whether prospective jurors behave in certain ways as a result of

1) religious beliefs?

2) moral beliefs?

Whether a judge may permit an attorney to inquire in a fashion which does not mention religion in so many words but is intended to elicit information on the prospective juror's

1) religious beliefs?

2) moral beliefs?

Whether a judge may permit an attorney to inquire as to whether prospective jurors would believe that an accused is an immoral person because he/she acted contrary to the prospective juror's

1) religious beliefs?

2) moral beliefs?

If the answer to any of the above is in the negative, whether a judge should intervene in the voir dire process without an objection by an opposing party

a) when the words "religion," "religious" or a synonym are

1) used directly by counsel;

2) not overtly used but the judge concludes that they are implied by the context.

b) when the terms "moral," "morality" or a synonym are

1) used directly by counsel

2) not overly used but the judge concludes that they are implied by the context.

ANSWER: The Committee declines to answer this inquiry as it is outside the scope of this Committee's jurisdiction.

FACTS

The inquiring judge wishes to know whether he may properly allow lawyers to inquire of members of the venire in regard to matters which directly or indirectly seek to elicit information regarding their religious beliefs, assuming that religion is not otherwise an issue in the proceeding. The inquiring judge expresses concern that allowing this line of questioning runs afoul of Canon 3B(6).

DISCUSSION

Canon 3B(6) directs a judge to require lawyers in proceedings before the judge to refrain from manifesting bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status against parties, witnesses, counsel or others. The section does not preclude legitimate advocacy when race, sex, religion, etc., or other similar factors are issues in the proceeding.

The ethical questions posed by the inquiring judge would be impossible to answer outside the context of a specific case and without knowing the exact question or questions asked. Further, whether a question by an attorney is legitimate advocacy requires a legal rather than an ethical analysis, an area outside the Committee's jurisdiction.

In Opinion 97-18 an inquiring judge asked whether he could exercise statutory judicial discretion for humane reasons and ignore the criminal statute, section 827.04(3), Florida Statutes, and issue a marriage license to a pregnant female age 15 and a male age 24, if the girl's parents consent. The judge also asked whether if the mother of the pregnant female does not consent and the female testifies the mother is pressuring her to have an unwanted abortion, can the judge still exercise statutory judicial discretion to issue a license so a baby is not born out of wedlock. The Committee declined to answer the questions, as the questions called for legal answers instead of ethical answers. See, also, Opinion 91-10 (A judge asked the Committee for a statutory interpretation of Chapter 99.012 of the Florida Statutes. The Committee stated that the inquiry was outside the Committee's jurisdiction.) and Opinion 89-7. (The inquiring judge asked whether it would be a violation of the Code to enter a judgment knowing it would award money to a law firm as reimbursement for expenditures the law firm should not have undertaken. The Committee found the question did not fall within the scope of the Committee’s assigned responsibility.)

The inquiring judge will have to make his or her own assessment as to whether a specific question or questions asked by an attorney to a jury venire is legitimate advocacy or is demonstrating a bias or prejudice based upon race, sex, religion, etc.

REFERENCES

Florida Code of Judicial Conduct Canon 3B(6).

Florida Judicial Ethics Advisory Committee Opinions: 89-7, 91-10 and 97-18.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, The Harry T. and Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.

Participating Members: Judges Cardonne, Dell, C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Tolton and Attorney Blanton

Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)