Jan
21

Time To Change Connecticut's Voir Dire Law

Ice is melting in a New Haven courtroom, and the world has turned out to watch. Will members of the Connecticut General Assembly pay any attention? Will they open their eyes and realize that individual sequestered voir dire wastes time and contributes little or nothing to the pursuit of justice?

Jury selection is underway in the case of State v. Steven Hayes. He is one of the two men accused of invading the home of Dr. William Petit in the summer of 2007. Hayes and his co-defendant face the death penalty for their roles in the rape and murder of the doctor's wife and two daughters. The men also assaulted Dr. Petit.

The Cheshire home invasion is national news. A photograph of the once happy family has been on the cover of pulp magazines. Already at least one book has been published on the case. Passions run high throughout the state about the men standing trial, with sentiment leaning toward summary execution.

Evidence in the Hayes case is scheduled to begin in September. I say scheduled because it is by no means clear how long it will take to pick a jury. Potential panelists will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months in this case.

There is no good reason why this jury cannot be selected in one week's time. Such passion and hatred as the crime evokes need not be addressed one venire person at a time. Jurors are picked routinely in the state's federal courts in a process known as group voir dire, where panelists are questioned as a group. Some judges permit the lawyers to conduct the questioning. I have picked jurors under both systems and discern no difference in the quality of justice delivered in the two court systems.

No other state picks jurors the way we do. And I am unaware of any empirical or even anecdotal evidence that suggests that we are doing a better job of deciding cases in Connecticut.

To the contrary: It takes years to tee up a case for trial in Connecticut's state courts. I suspect that is because of the length of time it takes to pick juries. When it takes three or four days to pick jurors for one day of evidence, each and every trial becomes a week-long event. Friends of mine from other states marvel at the delay we tolerate here. Justice delayed is justice denied, a popular maxim holds. But in Connecticut, justice denied is business as usual. Does anyone really believe that the administration of justice would suffer in Connecticut if we relied on group voir dire, the method used throughout the nation in the federal courts and in every other state?

Supporters of group voir dire claims in yields better jurors. Individual attention, the theory goes, yields candor. I have my doubts. Putting a lay person alone in the witness box and dropping them into a room of strangers terrifies many people. Examining jurors in a setting where they can share their views with their peers is just as likely to foster candor. Those with sensitive issues to raise can always request a side bar. Indeed, the use of side bars for private information better serves juror privacy than asking someone to disclose a painful incident in open court.

Why do we insist on the slow and tortured process? Article First, Section 19 of the Connecticut Constitution declares that "[t]he right to question each juror individually by counsel shall be inviolate." But this is only half the story. Nothing in the state's constitution requires that this questioning be done outside the presence of all other jurors.

What really jams the gears of justice, at least in the criminal courts, is Connecticut General States 54-82f. This statute guarantees a party the "right to examine ... each juror outside the presence of other jurors."

I say start with legislation repealing the statutory guarantee of isolation. The constitution can be satisfied by questioning jurors in the presence of others. And if it doesn't, perhaps we should just amend the constitution. We could save money and promote prompt resolution of disputes with group voir dire. If you doubt the need for this, take a trip to New Haven and watch the ice melt in the Hayes case. No need to hurry; they'll still be picking when the daffodils bloom.

Reprinted courtesy of the Connecticut Law Tribune.
Comments (2)
Posted on February 17, 2010 at 12:54 pm by Adam
Connecticut General States 54-82f. This statute gu...
Connecticut General States 54-82f. This statute guarantees a party the "right to examine ... each juror outside the presence of other jurors." This implies that it is the prosecution of defense that requests an individual examination of potential jurors. Is this a matter of request or procedure? If it is a matter of request then what does either side have to gain from a private examination? Asked as a 1L

Posted on January 21, 2010 at 3:54 pm by William Doriss
Once again, I am going to disagree with you on the...
Once again, I am going to disagree with you on the need to abandon 'individual' voir dire. (See comments by me below on similar stories.)

Also, I note I passing an objection to individual voir dire by the good Dr. Petit as reported in today's New Haven Register, by Randall Beach, a very good journalist. My comment, objecting to and criticizing this so-called doctor, was removed without explanation or notice. 1st Amendment anyone? I guess I won't be visiting the Ragister that often in the future1!?!

Apparently, the Ragister is biased against unpopular and/or controversial opinions freely expressed in its comments sections.

You claim, Norm, that CT is the only state which conducts individual voir dire--which you claim slows down jury selection to a crawl--is not quite accurate.

I say, Too Bad! I also say, you are wrong. What you mean to say is that CT is the only state which conducts individual voir dire where the Prosecution and Defense table are entitled to question each prospective juror in isolation from all other prospective jurors. You fail to mention that in addition to this questioning, the presiding judge herself is free to interrupt with questioning of her own at any time.

As someone who has sat at the defense table as a defendant in a criminal proceeding in CT where I actually helped select my own jury, I am going to disagree with you strongly once again.

There is nothing worse in life in Amerika than to be hauled into the criminal court (where bail has been set, whether posted or not) and to be charged with bogus and/or exaggerated criminal charges. Go to NPR.org and listen to Laura Sullivan's report today of the epidemic of prisoners sitting in prison because they cannot make bail--sometimes as little as $50-150. This is an outrage promulgated by a powerful bail-bond industry which makes the necessary contributions to the right parties, while those rotting in prison have no constituency.

What about your own bail-bond scandal in New Haven? Are you going to tell me that that cesspool of corruption has been corrected? I don't think so!

It does not take much action by the State to thoroughly wipe-out indigent and low-asset individuals and families. In my own cases, Judge Iannotti raised my bail from $2500 (recommended by the bail commissioner) to $10,000 without cause other than the State making that outrageous extortion request. What's up with that? To ensure my court appearance when there is no record of my ever missing a court appearance in 58 years, in any jurisdiction nationwide? This practice is insane. It does not make any sense, simpley.

This unKonstitutional practice is astonishing on its face, and no stranger to CT. The bail-bond industry is a player looking out for its own interests. Who is looking out for the interests of the falsely accused suffering under excessive bail (violation of the 8th Amendment)?

Before I leave, as noted by me below, Massachusetts conducts both group voir dire and individual voir dire (as does CT). The only difference is that the individual voir dire in CT is conducted by both the prosecution and the defense table, with the judge playing a supporting role. In Mass., the individual voir dire is conducted by the judge himself, who may or may not entertain objections from either of the parties. This may take 5-15 minutes, barring objections. If there are objections, it might take a little longer.

In State v. Doriss, 00-495971 and 01-502506, individual voir dire was conducted by the prosecution and the defense table. As previously noted, I helped select my own jury. I would not have it any other way.

Sorry Norm, you're wrong on this one. This may in fact be one of the best aspects of the CT practice, and not the worst--as you and Dr. Petit would suggest. If practicing law as a trial attorney is so boring, may I be so bold as to suggest driving a cab for a living. Perhaps that's would be more exciting,...and more dangerous.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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