Court of Appeals of Utah Finds Trial Judge Properly Stopped Defense Counsel From Asking “Do you believe children are capable of lying about significant events?” During Jury Selection
In a trial for two counts of aggravated sexual abuse of a child, should defense counsel be able to ask prospective jurors the following question during jury selection: “Do you believe children are capable of lying about significant events?” That was the question addressed by the Court of Appeals of Utah in its recent opinion in State v. Wall, 2025 WL 629988 (Utah App. 2025).
In rejecting the defendant’s appeal after the trial judge precluded defense counsel from asking this question during voir dire, the Court of Appeals ruled as follows:
Wall asserts that the district court exceeded its discretion by rejecting his requested voir dire question, “Do you believe children are capable of lying about significant events?” We conclude that the court did not abuse its discretion….
The question at issue here—“Do you believe children are capable of lying about significant events?”—was quite clearly aimed at discovering jurors who would be favorable to the defense’s theory that Daughter was lying about the abuse. Our opinion in State v. Leleae, 1999 UT App 368, 993 P.2d 232, is instructive on this point. There, the district court rejected a proposed voir dire question that read, “Do any of you believe that an eyewitness can never make a mistake?”…We viewed that question as not addressing “a possible prejudice or bias” but, rather, as “a thinly veiled attempt to ferret out which jurors were more likely to believe [the] defendant’s theory of the case,”…namely, that an eyewitness who identified the defendant as having been among the people who assaulted the victim was mistaken….Similarly here, the proposal to ask potential jurors whether they “believe children are capable of lying about significant events” was at least as much about Wall’s theory of the case—that Daughter was lying—as it was a neutral inquiry into potential juror bias regarding child witnesses. And it appears that the district court viewed the question this way when, in rejecting the question, it said, “You make your own case when we get to it….I’ll allow you to make your arguments on that, but I’m not going to ask that in voir dire.” We therefore see no abuse of discretion in the court’s refusal to allow that question.
At the same time, we acknowledge that Wall’s question was also arguably aimed, at least in part, at discovering bias regarding child witnesses, which, when relevant, may be a proper subject of voir dire. Accordingly, Wall contends that the court’s denial of the opportunity to ask the question he proposed was a refusal by the court to permit any inquiry into potential juror bias regarding child witnesses. For three interrelated reasons, we disagree.
First, a question could have been constructed to discover bias regarding child witnesses without simultaneously telegraphing Wall’s specific theory of the case. For example, the court asked the potential jurors the following appropriately worded question about bias regarding law enforcement officers: “Would you give more or less weight to the testimony of a law enforcement officer just because the witness is a law enforcement officer, or would you treat a law enforcement officer the same as any other witness?” And a similarly worded question could have been asked about child witnesses.
Second, it was not the court’s responsibility to craft a proper question about potential bias regarding child witnesses, especially where, after the question he proposed was rejected, Wall never alerted the court that the purpose of his question was to discover such bias and not to ferret out which jurors were amenable to his theory of the case….
Finally, there is no indication that the court would not have been amenable to a rephrased question aimed at discovering bias related to child witnesses if Wall had proposed one. Indeed, immediately after the court rejected Wall’s question about the truthfulness of child witnesses, it expressed hesitancy to ask Wall’s next proposed question as well. Wall responded by suggesting that the question be modified and combined with a previously approved question. The court approved that suggestion, evidencing a willingness to work with Wall to craft voir dire questions that addressed appropriate topics while eschewing inappropriate ones.
-CM