Cumbersome bloviating misrepresents
Consider my gears ground. I’ve been resisting jumping in to counter the incessant stream of anti-individual voir dire noise emanating from Norm Pattis over the past month or so. I first saw a post on his blog, which was then reproduced in his column in the Connecticut Law Tribune and finally copied and pasted into this opinion piece in the Courant yesterday.
Norm, for some reason, has been crusading against the “cumbersome” and “wasteful” process of individual voir dire that we employ here in CT. What happens, simply, is this: a jury panel is brought into a courtroom, is read some preliminary instructions by a judge and then members are asked to identify if they have any hardships or other reasons why they cannot serve on a jury. Those who do not identify any such impediments are temporarily asked to retire to a room, while those that raised their hands and quickly individually questioned to determine the reason for their inability to serve. A large percentage of these people are quickly dispensed with and then people are brought out individually from the “able to serve” pool to be questioned to determine their suitability for serving on the particular case.
The length of individual voir dire varies greatly: a simple misdemeanor or less-serious felony jury can picked within a day. Murder juries can take over a week or so. Capital juries naturally take longer.
I have long argued that individual voir dire is preferable to group voir dire. Human nature is such that we are more likely to be honest in our beliefs when we are not being compared to those “similarly situated” to us. Besides, really the only purpose for group voir dire is to indoctrinate jurors and educate the jury, a point which Norm claims is one of the abuses of individual voir dire.
But there are several other problems with his position. He starts with this paragraph:
In every other jurisdiction nationally, juries are selected in a group voir dire. Questions are put to potential panelists to see whether they can be fair and impartial in the case for which they may be selected. The group method permits folks to sit with their peers to answer questions about bias or prejudice. A jury can be picked by this method, even in a case of some complexity, in a matter of hours.
That’s just patently false. Many, many jurisdictions besides Connecticut permit individual sequestered voir dire. Let’s talk capital cases, because that’s seemingly what precipitated his tirade against ISVD. By a rough informal survey conducted this afternoon, I have been told that the following states permit ISVD in capital cases:
- Federal
- Alabama (discretionary)
- Arizona
- California
- Colorado (not required but routinely done)
- Florida
- Georgia
- Indiana
- Maryland
- Kentucky (statutorily required in capital cases)
- Louisiana
- Missouri
- New Mexico
- NJ
- NY
- Ohio
- Oklahoma
- Oregon
- Pennsylvania (required in capital cases; individual, sequestered in discretionary in non-dp cases)
- South Carolina
- Tennessee
- Washington
- Texas (statutorily required in capital cases)
That’s 23 jurisdictions besides Connecticut. Almost half the States. Not none. In addition, the results of an informal survey I conducted on Twitter a few weeks ago revealed that more than just CT permit ISVD in non-capital cases.
Norm uses the currently underway Steven Hayes trial in the infamous “Cheshire” case to illustrate his point that ISVD is wasteful, long and useless:
After nine days of jury selection in the Hayes case, four jurors were picked. (Selection of jurors was suspended following an apparent suicide attempt by Hayes.) It is entirely possible that jury selection will proceed at this pace or slower until a panel of 12, plus alternates, is seated. The trial expected to begin in September. Is it necessary to spend months picking a jury?
There’s a bit of disingenuous cherry-picking going on here. Anyone who’s been following Helen Ubinas’ tweets can attest to that. First, let us consider the fact that four jurors were picked. That’s four questioned. Add to that the number of challenges exercised by both sides (10, by my count). So that’s only 14 jurors who could have been seated as jurors over 9 days. The reason that using the Cheshire case an example is a terrible idea is that the case is so polarizing. Only a very small percentage of the panels of 40ish brought in every couple of days was even eligible to be questioned: the rest were excused either for hardship due to the length of the trial and the economy or were simply unwilling to serve due to the nature of the case. So to claim that only 4 jurors were picked after 9 days of jury selection is misleading. In fact, by any honest standard, jury selection in the Cheshire case is chugging along at a fast clip.
Let us not forget that the Connecticut Constitution provides for individual voir dire.
The basis of any argument against ISVD seems to be that it is time consuming and it is costly. Time consuming I will admit, but do we really want to trust juries picked in 30 minutes? And as for cost, voir dire is the least of the money drains. The death penalty itself is a big vacuum that sucks in bundles of money. Better ways to save money would be to trim the fat out of the penal code, get prosecutors to stop overcharging, reduce the lengths of confinement to what is truly needed to punish and rehabilitate and to divert money from the prison industrial complex and “truth in sentencing” to reducing crime. To point at ISVD as one source of wasteful expenditure is rather silly.
Group voir dire is not a panacea. Its problems are well documented. And I shudder all the more when I read articles like this, teaching lawyers how to “make the best of limited voir dire”.You are left to the mercy of judges and juror questionnaires. You are left to the mercy of people willing to admit biases in front of others. You are left to the mercy of people being honest about their opinions and not altering them on-the-fly on the basis of others’ responses.
The point of voir dire, it would seem, is to find jurors who can be fair and impartial, who harbor no hidden biases against certain principles or, heck, your client. I’m not willing to trust that brief questioning in a sea of 40 others will be probative enough to weed out those that are unfit for service.
It boggles the mind that someone who takes the very liberty of another individual into his own hands would be willing to place his faith in a group of individuals, randomly selected within a matter of hours.
Look, there are many people who hold his view. They are all entitled to it. But I’m certainly very curious as to why Norm is choosing this particular moment to launch this one-man assault on the individual voir dire system here in CT.
But instead of taking a good, albeit time consuming, right and turning it into something that is not as desirable for the sole reason of cost, I have a suggestion: next time you’re on trial, just waive the right to individual voir dire. I’m sure the client will understand.
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about 5 months ago
G:
Having selected scores of juries in both the federal and state courts I stand by opinion: I see no difference in the quality of juries in the state and federal system. It is hard to know whether you have ever done group voir dire since you write under a pseudonym. But I suspect you are a state-court practitioner and have experience only with individual sequestered voir dire. I understand your opinion: Your mom is the prettiest and smartest and bestest woman in the whole wide world. But those with broader experience know otherwise.
Yes, other jurisdictions permit individual sequestered voir dire upon a showing of good cause. No harm in retaining that. But permitting it is a matter of right wastes time and money, and permits “cumbersome bloviating” in routine cases. Connecticut is the only state in the nation that requires it in every case. And no one, not even you, argues that the quality of justice in Connecticut surpasses that of other states.
about 5 months ago
Well, to equate the “quality of justice” in CT as being informed solely by individual voir dire is ridiculous. Obviously, we have some other problems. But happily, voir dire isn’t one of them.
I wonder whether there is any correlation between individual voir dire and mistrials declared as a result of juror issues, and/or whether there are fewer postconviction juror issues that arise in CT? I wonder how the conviction rates compare, especially with respect to more serious charges.
Finally (and I am not directing this comment at Norm Pattis personally, as I have no idea how he conducts voir dire), I get the sense that some folks who criticize individual voir dire don’t know how to do it properly. If you’re doing most of the talking, not asking any open-ended questions, and simply trying to “educate” the venireperson, then I do understand how individual voir dire seems not to provide any great benefit to your client or to the system. What you’re saying and getting from that person, you could easily get from a panel. On the other hand, to watch savvy and talented attorneys conduct individual voir dire is to really understand and appreciate its value. Haven’t you ever seen a juror, after 15-20 minutes of questioning – some questions even seeming to ask the same thing in different ways – say something that totally surprises you? It might have taken 3 questions, but suddenly, you’ve uncovered a feeling or bias that you weren’t aware of before. Maybe the venireperson wasn’t aware of it him/herself. In some cases, you can rehabilitate, educate and deal with it, but in others, we now know the juror can’t serve. This is just one example of one of many reasons I believe individual voir dire to be far superior to panel.
about 5 months ago
Exactly. It’s like you’re me, but a different person.
about 5 months ago
I have chosen juries in a neigboring state. The voir dire for a jury of 6 generally takes 10-15 minutes. For a jury of 12, a half hour to an hour. Though we make requests for individual voir dire on certain types of questions (race comes to mind), such requests are rarely granted. Moreover, attorneys are not allowed to speak. They may submit questions to the judge to ask, and argue that certain questions be asked, but again, such requests are rarely granted.
In my last out of state jury trial, one juror wrote on her quesionnaire that was prejudiced against all races. Upon further questioning by the judge, she merely repeated her assertion. “It’s because of my work,” she added. The judge decided that because she was prejudiced against ALL races, she was unbiased and impartial. No further questions were asked, despite the request of both prosecutor and defense counsel.
This example is not an isolated incident. This is commonplace. Is this really how we want jury selection to take place? Based upon my experience, I will wholeheartedly argue that the quality of justice in Connecticut (as it pertains to jury selection) is superior to that of its neighboring states.
about 5 months ago
I can talk a bit about both systems as I work in CT and MA, tho in appeals. I much prefer CT.
In Mass, a panel of jurors are brought in. The judge asks a series of routine questions and may ask additional questions if requested by either counsel. Attorneys strike jurors based on very bare bones questionaires. One has very little sense of the jurors’ education, experiences, beliefs, and biases — all of which may be critical in deciding how to present evidence and at what level of detail. I have been on a Mass jury — and it is an intimidating experience to decide whether one may be biased, and if so, whether and how to speak up to discuss the issue with the courts and counsel.
In CT, there is individual voir dire, and a chance for each juror to talk with the attorneys, and for each attorney to guage the juror’s attentiveness, ability to follow oral questions, education, experience, and so on. It is a slower system, but one in which it seems more jurors are willing to admit that they have concerns about bias, or publicity, or their own safety, and for those concerns to be openly addressed.
Yes, capital jury selection takes a long time. It should. A conviction or an aquittal in any case is a life-changing experience the defendant, and the victim and/or the victim’s family. In a capital case, the stakes are even higher, and the psychological issues regarding juror beliefs on capital punishment, mitigation, and reasonable doubt all much more critical and much more nuanced. As the saying goes — you can have reliable, cheap, or fast — pick one. I’d pick reliable, myself.
about 5 months ago
It’s not a contest, really. It’s quite obscene that 1) we are having this discussion spurred by cost and 2) that a criminal defense attorney is proposing it.
about 5 months ago
Having had Pattis’s statement about other jurisdictions not conducting ISVD shown to be false, I wonder what the actual relative frequency of 1 day, 2day, 3day jury seating is. I don’t know if the I know better because I’ve worked in Federal courts is compelling in the legal world but it’s not convincing in the STEM (science technology engineering math) world. How about some actual data?
about 5 months ago
It’s not compelling. It’s a silly argument.
I don’t have any specific data on the frequency of 1-day selection vs. 4-day selection or some such, because I don’t think anyone keeps track.
I do know that last week in my courthouse a trial for assault on an officer and interfering was completed (jury selection to verdict) in one day.