concurring in result:
I cannot fully agree with either the majority or the dissent. I do not agree with the majority’s conclusion that the conduct of voir dire at a criminal trial by a magistrate offends the Magistrates Act, nor do I share the majority’s concern that it presents Article III Constitutional concerns. On the other hand, I do not agree with the dissent that a magistrate may conduct voir dire at a criminal trial over the objection of the defendant. Thus, I would hold that the conduct of voir dire by a magistrate does not per se offend either the Magistrates Act or Article III of the Constitution, and because the defendant did not object, the practice in this case did not violate the defendant’s fifth and sixth amendment rights.
For purposes of our decision today, it seems to me that the words of Article III of the Constitution are simple and clear: the judicial power of the United States is vested in courts whose members have life tenure. That power is vested in those judges when magistrates are subject to the full supervision and control of those judges. Although I agree with the majority that actions of magistrates must be subject to effective review by district judges, I do not agree with the majority that the conduct of voir dire by magistrates cannot, in all cases per se, be effectively reviewed by a district judge. As the dissent points out, review of the voir dire process does present certain problems, sometimes unique, but these problems are not, in the vast majority of the cases, insurmountable. The majority’s solution, a per se rule against the conduct of voir dire by magistrates, is a much too stringent solution that deprives the district courts of some helpful flexibility in the utilization of magistrates.
It is unnecessary to remind anyone that the court system structured in Article III of the Constitution is presently overburdened in our twentieth century litigious society. No one disagrees, I would think, with the proposition that the courts, like the other branches of government, must be adept at responding to current circumstances. Thus, in enacting the Federal Magistrates Act, Congress sought to provide assistance to the busy district courts through the use of magistrates, and urged the courts to be innovative in the use of magistrates as a means of meeting modern challenges. The Magistrates Act was not designed to afford rigid protection to the prerogatives of federal judges against encroachment by judicial adjuncts who are subject to the judges’ full supervision. That much being clear, however, I would quickly emphasize that Congress certainly did not intend to dilute the procedural protection afforded defendants in criminal trials in federal courts.
I therefore do not dismiss even for a minute the force of Judge Higginbotham’s opinion as it demonstrates the determinant role that voir dire sometimes plays in the ultimate outcome of a defendant’s quest for justice. Unlike the majority, however, I view this matter as a concern, not of Article III, but of the fifth and sixth amendments’ protection of due process and an impartial jury. In other words, this concern implicates rights that belong to the defendant and not to the courts. Article III concerns, as I have indicated earlier, are satisfied by the availability of review by a district, judge. The individual defendant’s viewpoint is quite different. He may insist that the court provide him with the maximum amount of procedural protection to which he is constitutionally entitled. A defendant, however, may decide that his rights are fully protected at voir dire by a magistrate and may, for whatever valid reasons, consent to a magistrate’s presiding over voir dire. Obviously, if the defendant consents, he has received the procedural and constitutional protection to which he is entitled.
*1440Finally, I do not dismiss the concerns expressed by the majority that sometimes critical deficiencies in review of voir dire may present Article III concerns. When considered, however, in relation to the thousands of cases that are tried each year, such problems are likely very few. Nevertheless, it might be appropriate and wise for federal courts, in their supervisory capacity, to enact rules curtailing, or even precluding the use of magistrates at voir dire in certain situations. Such infrequent cases, however, are not convincing reasons that the practice followed by the district court in this case was in violation of the Magistrates Act or the Constitution. I therefore concur in the result reached by the majority.