State v. Barnett , 251 Or. 234 ( 1968 )

445 P.2d 124 (1968)

STATE of Oregon, Respondent,
v.
Ruth BARNETT, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted July 10, 1968. Decided September 18, 1968.

Leo Levenson, Portland, argued the cause for appellant. With him on the brief was Oscar D. Howlett, Portland.

Thomas H. Denney, Deputy Dist. Atty., Oregon City, argued the cause for respondent. With him on the brief was Roger Rook, Dist. Atty., Oregon City.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE and RODMAN, JJ.

DENECKE, Justice.

The defendant was found guilty of abortion and she appeals upon the ground that the trial court erred in prohibiting her counsel from asking prospective jurors on voir dire examination their religious faith.

This issue was not decided in another case involving the defendant, State v. Barnett, Or., 437 P.2d 821 (1968). We stated in that opinion that defendant's counsel should have been permitted to ask upon voir dire whether the prospective juror had any religious affiliation that would prevent him from giving the defendant a fair trial.

In the instant case the defense was permitted to ask the prospective juror whether he had any religious belief or affiliation that would prevent him from being a fair juror. The defense was not permitted to follow up the juror's answer by asking what his religious faith was.

The Oregon Constitution does not prohibit a prospective juror from being asked his religious belief. Art. I, § 6, provides:

"No person shall be rendered incompetent as a witness, or juror in consequence of his opinions on matters of religeon (sic); nor be questioned in any Court of Justice touching his religious (sic) belief to affect the weight of his testimony."

The first part of this section concerns the competency of any person to act as a witness or juror because of his religious beliefs. The defendant is not contending that the venireman's answer as to his religious belief might render him incompetent to act as a juror and subject him to challenge for cause; therefore, we do not address ourselves to that issue.

The second part of the constitutional section prohibits the questioning of witnesses as to their religious beliefs for the purpose of affecting their credibility. In State v. Estabrook, 162 Or. 476, 497-505, 91 P.2d 838 (1939), the district attorney cross-examined a winess about the tenets of her religion. We held that this was a violation of the second portion of the above-quoted section of the Oregon Bill of Rights.

The defendant's contention is that she has a right to know any information about the veniremen which could possibly cause them to be prejudiced and that such information is vital to her making intelligent peremptory challenges. There is a widely accepted belief that certain religious faiths feel more strongly about abortion than do others.

We hold that the trial court erred in not permitting the defendant to ask the prospective jurors their religious faiths.

"The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. [Citations] * * *. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. * *.

It is often exercised upon the ``sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,' * * *, upon a juror's ``habits and associations,' * * *, or upon the feeling that ``the bare question [a juror's] indifference may sometimes provoke a resentment,' * * *. It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. * * *." Swain v. State of Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 836, 13 L.Ed.2d 759 (1965). See State v. Steeves, 29 Or. 85, 96, 43 P. 947 (1896).

It is true that the prospective jurors stated that they did not have any religious beliefs that would prevent them from being impartial jurors and from giving the defendant a fair trial. A party does not need to be limited by that answer, however; he can pursue the matter and find out the particular religious belief of the venireman. A party can make his own determination whether a venireman with a particular belief will be impartial or unprejudiced and exercise his peremptory challenge accordingly.

Wasy v. State of Indiana, 234 Ind. 52, 123 N.E.2d 462, 464, 46 A.L.R.2d 1389 (1955), decided the issue in accordance with our opinion. Adams v. State, 200 Md. 133, 88 A.2d 556, 559-560 (1952); State v. Weiss, 130 N.J.L. 149, 31 A.2d 848, 850-851, aff'd 131 N.J.L. 228, 35 A.2d 895 (1943); and People v. Daily, 157 Cal. App.2d 649, 321 P.2d 469, 472 (1958), all hold to the contrary; however, we cannot agree with their reasoning. See cases collected at 54 A.L.R.2d 1204, 1215-1217 (1957).

The scope of voir dire examination is in the trial court's discretionary power to efficiently and expeditiously conduct the trial. In exercising that power, the trial court can consider, among other factors, whether counsel has had the opportunity to question sufficiently upon a certain subject or whether the question has any reasonable relevance to the venireman's qualifications or possible prejudices. The trial court cannot, however, in the exercise of its discretion prohibit counsel from seeking information about prospective jurors which is obviously revelant. State v. Steeves, supra, 29 Or. at 96, 43 P. 947; State v. Nagel, 185 Or. 486, 509, 202 P.2d 640, cert. den. 338 U.S. 818, 70 S.Ct. 60, 94 L.Ed. 495 (1949).

Reversed and remanded.