Not even wrong on individual voir dire

It’s barely been two years, but Connecticut’s resident celebrity lawyer Norm Pattis is at it again, calling for an end to individual sequestered voir dire. Two years have passed since the last time I noticed Norm make these demands and I see that the passage of time hasn’t made him any less wrong. You can read my previous posts for general discussions of why individual voir dire is better than group, so I’m going to focus this on rebutting some of the bullshit he writes today:

Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.

Sorry, but no. That’s just not true. That’s the basic premise of his argument and that’s false. Many states have provisions that allow for jurors to be questioned individually, either in the court or in chambers (!) on subjects of particular sensitivity. Why? If individual voir dire were no different than group, then such an allowance would be superfluous and unnecessary. That’s because it’s pretty easy to deduce that people are more willing to share things that are private or embarrassing or even offensive and prejudicial when they are alone and not being overheard by their peers.

And let’s remember that the goal of voir dire is to pick a fair and impartial jury that will – in criminal cases – decide the freedom and liberty of an individual.

No one contends that the quality of justice here is so superior that others want to copy our system.

Again false: every single person I’ve talked to about individual voir dire has expressed a desire to have that available to them. The fact that various states haven’t enacted individual voir dire is as much a product of their legislators as it is local lawyers’ desire to utilize this tool.

We have a complicated-sounding name for jury selection in Connecticut: individual, sequestered voir dire. The result is that it often takes far longer to pick a jury than it does to put on evidence. It is not uncommon to take a week or so to pick a juror in a serious criminal case.

I have no dispute with this. In a “serious criminal case”, the maximum punishments often range from 20 years to 60 years in jail. God forbid we take a week – which is 5 business days – to pick a jury of 8-16.

Let me explain how a typical jury selection day goes: court starts at approximately 10:00am. 25-40 potential jurors are brought to the court and sworn in. The judge then reads initial instructions which could take up to 40 minutes. Then those who cannot serve due to conflicts of interest or scheduling are excused. It could be close to noon before the first juror is questioned. Often, of a panel of 25, only 10 or so jurors remain who could potentially serve on the jury. So you go through each one. Some may take 40 minutes to question thoroughly, some might be done in 5.

If I’m sitting there with leg shackles and a borrowed suit, watching the State try to pick 6 people who will put me away for the rest of my life, the last thing I give a shit about is the length of time it takes to pick those 6 people and the last thing I want to see is my lawyer be complicit in illusory arguments about “speed of justice”.

It takes a long time to get a case to trial. Our dockets are lengthy. Folks lose confidence in a system when they cannot get their cases heard promptly. It is not uncommon to field phone calls from people looking to replace their lawyer because “nothing is happening” in their case. You can wait for years to get a jury trial in Connecticut in a simple case. Often there is nothing to do but wait.

And this has what to do with picking juries? I’ll tell you what: absolutely nothing. Norm’s complaint is that the legal system is slow – and I’ll let you in on a secret: it’s not. But the justice delayed line is just an appeal to passions and has nothing to do with whether we take too long to pick a jury. Because if you’ve waited 2 years to “get justice”, what’s another 3 days to pick a jury?

When I questioned him on this on Twitter, he made clear that he was referring to civil cases, because he knows as well as I do that in the criminal system any delay in starting trial is almost always at the request of the defense and there really hasn’t ever been a time when the defense is pushing a trial and the State isn’t ready. If I want my trial today, I’ll get it.

I suspect the real reason some lawyers like the Connecticut method is that it builds delay, and legal fees, into the system. In some harried jurisdictions, jury selection in a civil case can take days, even weeks, as the court staff struggles to juggle its many commitments.

Therein lies the crux of what is motivating Norm: the cost to him and to his fellow attorneys who do civil work. The number of days spent in jury selection represents missed opportunity to earn income elsewhere. In civil cases, attorneys work on contingency fees: they get a certain percentage of what damages you win. So, the amount doesn’t change in the end regardless of the number of days worked. The less days worked, the greater the pay per day and additional income can be gained elsewhere.

Now, I don’t want to take food out of Norm’s mouth and so I will acknowledge that it can be a valid argument: but what I take issue with is that he hides it in his forceful arguments, burying it just under the surface. If we’re  going to have a discussion of this subject, at least let it be honest.

The fact is that no empirical evidence supports the assertion that we do it better using individual, sequestered voir dire. In fact, the evidence is to the contrary. It takes far longer to get a case to trial in Connecticut than almost anywhere in the country.

Putting aside the fact that there is a whole industry out there that teaches lawyers how to make the best of the limited time they have in group voir dire and to learn to read jurors’ hidden intentions and motions and memoranda passed around for generations on how to get judges to permit greater questioning, which all imply that in an ideal world, criminal defense lawyers would and should have the right to individually question every person who could potentially decide the fate of a client – a fellow human being, where is the evidence that individual voir dire is worse?

And if there is no such empirical evidence – and I’m not sure there ever can be either way – then shouldn’t we ask ourselves: what is the real reason someone wants to change a system that isn’t broken? What’s in it for them?

The fact that he ties the length of individual voir dire to the time it takes to get to a trial should highlight the bait and switch.

Finally, Norm proposes a change to the law: a system where there base-line is group voir dire and, for good cause, we get to have individual voir dire in rare cases.

I propose that if there is to be a change it should be exactly the opposite: individual voir dire unless both the prosecutor and the defendant (not defense counsel) agree to waive it. Let’s see how many do. I suspect the number will be closer to zero than Norm thinks it will be.

As my favorite law professor would say: you’re not even wrong.

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Just for fun, here are the court rules for group voir dire in Washington. They scare me:

The voir dire examination of jurors shall be conducted under the direction and control of the Court with the following guidelines:

1)  It is expected that voir dire, in most cases, will consume one hour of time or less*. Generally, the Struck Jury Method of voir dire will be used.

2)  The Court shall ask all general questions and thereafter shall give leave to the respective parties to ask such supplementary questions as may be deemed proper and necessary by the Court. The parties may submit all proposed general questions in writing prior to voir dire.

3)  The Court may intervene without objection in instances of inappropriate questioning and may limit the amount of time each party has to examine a juror or jury panel.

*It took more more than an hour to write this post. Chew on that.

 

15 thoughts on “Not even wrong on individual voir dire

  1. PDinGeorgia

    “Only in Connecticut do we question potential jurors one at a time, each outside the presence of the others.”

    I can’t speak for other states, but Georgia also questions jurors in this manner. In fact, it’s close to a requirement in death penalty cases. In other cases, it’s a choice.

    The Judge in the courtroom to which I am currently assigned has started conducting individual voir dire in every criminal case since late last Fall because he finds it to be more efficient. Yes, that’s right – efficient. Here’s why:

    Jurors often use other jurors’ answers to try and get off jury duty. “Oh, I didn’t raise my card to the hardship questions because I didn’t think it was a hardship, but I’m in the same boat as Juror #47.” “Like Juror #38 said, I, too, would like to say I would do my best to be fair, but I’m not sure that I can.” Plus, you have the issue of jury taint. “I don’t think I can be fair because the defendant looks guilty.”

    Reply
    1. Gideon Post author

      Whose choice is it?

      And it’s quite interesting that individual voir dire would be more efficient. We have judges here who don’t ask for hardships in the group as well just for that reason. How many jurors are questioned in a day, would you say, using the group method?

      Reply
  2. PDinGeorgia

    “It is expected that voir dire, in most cases, will consume one hour of time or less.”

    And this is ridiculous. In Fulton (Atlanta), it’s common for voir dire to last at least one day in a serious felony case. In the rural circuits, it’s common for voir dire to last several hours on your run-of-the mill meth possession case. What kinds of questions are people asking in Washington?

    Reply
    1. Gideon Post author

      A day? I’ll take a week here for a sex assault case, maybe more, but out of that week or more, we’re actually questioning jurors for far less.

      Reply
  3. Punchy

    It probably should be noted that the “rule for Washington” that you cite is a local rule for one Municipal Court in Washington. So, a court that doesn’t handle felony cases. Not saying it’s not a bad rule and more time should be allowed, but perhaps not as egregious as it seems at first glance. I know Superior Courts allow more intensive voir dire along with some individual questioning in particular cases, plus the use of jury questionnaires.

    Reply
  4. Josh

    Seattle Public Defender here.

    Yeah, to follow up on punchy, that’s not the state rule on voir dire. Only the rule for Bellingham Municipal Court.

    And the local rule may or may not stand up to challenge if anyone bothered to litigate the issue. Local courts can only issue rules that are not in conflict with state rules. Given the right facts (like some complicated–for misdemeanor court–DV case or political protest case) I am almost certain that the appellate courts would strike down this rule.

    Criminal Voir Dire in felony court is regulated by CrR 6.4 http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CrR&ruleid=supCrR6.04:
    RULE 6.4
    CHALLENGES

    (a) Challenges to the Entire Panel. Challenges to the entire
    panel shall only be sustained for a material departure from the
    procedures prescribed by law for their selection.

    (b) Voir Dire. A voir dire examination shall be conducted for
    the purpose of discovering any basis for challenge for cause and
    for the purpose of gaining knowledge to enable an intelligent
    exercise of peremptory challenges. The judge shall initiate the
    voir dire examination by identifying the parties and their
    respective counsel and by briefly outlining the nature of the
    case. The judge and counsel may then ask the prospective jurors
    questions touching their qualifications to serve as jurors in the
    case, subject to the supervision of the court as appropriate to
    the facts of the case.

    (c) Challenges for Cause.
    (1) If the judge after examination of any juror is of the
    opinion that grounds for challenge are present, he or she shall
    excuse that juror from the trial of the case. If the judge does
    not excuse the juror, any party may challenge the juror for
    cause.
    (2) RCW 4.44.150 through 4.44.200 shall govern challenges for
    cause.

    (d) Exceptions to Challenge.
    (1) Determination. The challenge may be excepted to by the
    adverse party for insufficiency and, if so, the court shall
    determine the sufficiency thereof, assuming the facts alleged
    therein to be true. The challenge may be denied by the adverse
    party and, if so, the court shall try the issue and determine the
    law and the facts.
    (2) Trial of Challenge. Upon trial of a challenge, the Rules
    of Evidence applicable to testimony offered upon the trial of an
    ordinary issue of fact shall govern. The juror challenged, or any
    other person otherwise competent, may be examined as a witness by
    either party. If a challenge be determined to be sufficient, or
    if found to be true, as the case may be, it shall be allowed, and
    the juror
    to whom it was taken excluded; but if not so determined or found
    otherwise, it shall be disallowed.

    (e) Peremptory Challenges.
    (1) Peremptory Challenges Defined. A peremptory challenge is
    an objection to a juror for which there is no reason given, but
    upon which the court shall exclude the juror. In prosecutions for
    capital offenses the defense and the state may challenge
    peremptorily 12 jurors each; in prosecution for offenses
    punishable by imprisonment in the state Department of Corrections
    6 jurors each; in all other prosecutions, 3 jurors each. When
    several defendants are on trial together, each defendant shall be
    entitled to one challenge in addition to the number of challenges
    provided above, with discretion in the trial judge to afford the
    prosecution such additional challenges as circumstances warrant.
    (2) Peremptory Challenges–How Taken. After prospective
    jurors have been passed for cause, peremptory challenges shall be
    exercised alternately first by the prosecution then by each
    defendant until the peremptory challenges are exhausted or the
    jury accepted. Acceptance of the jury as presently constituted
    shall not waive any remaining peremptory challenges to jurors
    subsequently called.

    Reply
    1. Gideon Post author

      So it’s still group, though? How long does it usually take to seat a jury in a serious sex assault or home invasion type case?

      Do you ever get to do individual voir dire? Would you like to?

      Reply
      1. Josh

        Home invasion goes a day, day and a half. Serious sex cases longer. Murder cases a week or more, capital cases go a month or more.

        While group questioning of jurors is the default, in more sensitive cases judges might allow individual questioning.

        The trial courts have been very conscious of how jurors don’t want to give deeply painful personal information in front of large groups (ie admitting they were raped in the past) but at the same time, case law has made it inescapable reversible error if the court closes the court and conducts voir dire in chambers unless a detailed analysis is made for why the proceedings cannot happen in open court.

        Reply
  5. Nick

    “When I questioned him on this on Twitter, he made clear that he was referring to civil cases, because he knows as well as I do that in the criminal system any delay in starting trial is almost always at the request of the defense and there really hasn’t ever been a time when the defense is pushing a trial and the State isn’t ready. If I want my trial today, I’ll get it.”
    Is curious. Here in California, pushing cases to trial within the 60d statutory time for jury trial is very common. (It is, in fact, a huge part of why OJ won, because the DA filed before most of the evidence had been processed).
    I agree with the rest. Panel voir dire is an invitation for the judge to press for hilariously short voir dire times. Lots of judges try to impose a 20 minute limit on voir dire on anything short of death penalty, so we have to find creative ways to get another 10min.

    Reply
    1. Gideon Post author

      Our speedy trial rules are such that the earliest you can get a trial is 8 months after initial incarceration. That’s not to say that if you didn’t want a trial prior to that, you wouldn’t get it. I mean, how long does it take for the state to get ready? And the requirement isn’t start of trial, it’s start of jury selection. So if you’re pushing and the state isn’t ready, they can start jury selection, pick one juror and then continue it for 2 months for the state to get ready.

      Reply
      1. Nick

        8 months is a long time here. If we wanted 8 months, around month 7 we’d basically be begging for a continuance excepting murder and some serious sex cases.
        Which is weird, because at 2 months, the court is basically begging us to continue because they have 20 cases set for trial the same week.

        Reply
  6. Max Kennerly

    In Philadelphia state court, we typically do individual sequestered voir dire for civil trial juries (in front of the bailiff, with the judge deciding issues if the parties disagree). It takes a while, but every plaintiff’s-side lawyer I’ve ever talked to has been strongly in favor of the process. I have the burden of proof, and so one nutball “tort reform” or racist or vengeful or simply crazy juror can destroy my case. We relish the time we get to investigate concealed prejudices.

    I guess if you’re running through dozens of little cases then it makes sense to just run all of them as quickly as possible, but for any case of any significant size, the last thing I want is to skimp on jury selection.

    Reply
  7. Comparison

    In DC, by and large, jurors are read certain questions in a group (like, do you work in law enforcement, etc.). They write down the number of the questions that they would answer yes to. Then they’re brought to the bench one by one, with the husher on, for questioning on their answers. It’s in open court, in the sense that everyone can see what’s going on. But it’s private in that the audience can’t hear the juror talking about private things. (The defendant listens on headphones.). It’s an excellent system.

    Reply

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