The Perils of Secret Voir Dire

I cannot help but wonder whether the public trial rights of criminal defendants are routinely violated in Connecticut when judges conduct sensitive voir dire by means of the dreaded sidebar. Consider the implications of United States v. Gupta, a 2011 U.S. Court of Appeals for the Second Circuit case.

Raghubir Gupta was convicted of one count of immigration fraud and sentenced to 51 months in prison. During jury selection, a courtroom deputy instructed Gupta's brother and another person to leave the courtroom. He later justified that decision by saying he was directed by the judge in order to assure adequate room for venirepersons and to avoid the risk that those being selected would hear anything about the case from a member of the public.

The Second Circuit did not find this rationale persuasive, holding that Gupta's Sixth Amendment right to a public trial was violated by the court's unexplained exclusion of the public. "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power," the court noted, citing a U.S. Supreme Court opinion.

Courts can be closed to the public, but in order lawfully to do so, a judge must consider four criteria, to wit: (1) protection of an overriding interest likely to be harmed; (2) the narrowest possible closure must be selected; (3) reasonable alternatives to closure must be considered; and (4) the trial court must make findings necessary to justify the closure.

"A trial court's intentional, unjustified closure of a courtroom during the entirety of voir dire cannot be deemed trivial," the Second Circuit noted. Gupta's conviction was vacated and remanded for further proceedings.

Appellate whizzes will quickly note that what the circuit condemned was closure of the courtroom during the "entirety" of voir dire. Surely isolated confabs between counsel and the court outside the earshot of others in the courtroom is merely a part of the process.

It's a distinction without difference, I say.

Sidebar voir dire frustrates the Sixth Amendment's public trial requirement, and it hides from public opinion critical information about which jurors are selected, or rejected, to do the public's work.

The decision on whether to include or exclude a juror from service is a powerful demonstration of the judicial power. In state court, by contrast, where jurors are questioned outside the presence of other jurors, there is no semi­secret voir dire at sidebar. Critical words spoken about suitability to serve on a jury are spoken in open court—always.

Federal judges typically dread sidebars during trial, viewing them as disruptive and akin to an insult of the jury assembled and patiently waiting in the jury box. Odd how quick these same jurists are to require sidebars during voir dire.

I'm not suggesting that the federal courts adopt individual sequestered voir dire. But there are alternates to the semisecrecy of the sidebar. Venire people who have sensitive information to share about their suitability to serve can be brought into the courtroom one at a time, outside the presence of their peers, to state their reasons in open court.

Perhaps the most interesting thing about Gupta is that it was concerned not at all with the potential embarrassment to potential jurors of stating inconvenient truths in open court. The circuit was driven by a need to preserve transparency of criminal proceedings for the public at large.

I think the circuit got it right, and I am encouraging lawyers to take aim at the semisecret scourge of sidebar voir dire. 


Policing Hasn't Changed; Public Opinion Has

I was at the Mohegan Sun casino the other day, during normal business hours. But I was not there for the purpose of gambling. I swear. I have a room full of police chiefs who are my witnesses.

For the second straight year, I was the guest of the Connecticut Police Chiefs Association, invited to speak about a criminal defense lawyer’s perspective on the challenges facing police officers. This year’s topic was simple: Why the sudden scrutiny of police use of force?

The group was somber. Their men patrol streets in neighborhoods where they are sometimes viewed less as law enforcement and more as an occupying force. They are concerned that the rapid change in public opinion will result in more police deaths as officers become reluctant to defend themselves for fear of retaliation.

I’ve been involved in police misconduct litigation for decades, and, from where I sit, I actually see fewer claims about police violence than in the past. But the claims I now see go viral: whether captured by body cameras, dash cameras or passers-by, videos of police violence rapidly go public. Who has not watched the choking death of Eric Garner on Staten Island?

Police officers don’t do a good job of explaining their work to the public at large. I told the chiefs the responsibility for doing so belongs to them. So long as officers behave like a secret brotherhood, the public at large will not understand why unarmed men are sometimes killed.

Watching a video of a police officer taking a person into custody is often jarring. Officers are taught that they have the right to overcome resistance with force, even lethal force, so long as the force they use is reasonable.

But what is reasonable?

If your loved one is killed, odds are you will be enraged by the use of lethal force in a close case. The same is true if the person killed is someone with whom you identify. The sense that “there but for the grace of God go I,” or sympathy, is a sentiment informing our moral reckoning.

Police officers are unpopular in many quarters these days. That’s because there is a broader crisis of legitimacy afoot throughout the United States. A growing division between rich and poor divides the nation into separate cultures; lingering racial resentment, too, yields a sense of a nation ripped into pieces.

Just this week, I learned that if you use a variant of the “N” word on Google Maps and type in “‘N’ house,” you will be directed to 1600 Pennsylvania Ave., in Washington, D.C., the current residence of President Barack Obama. Really? Google?

The racial divide in this county runs deep, and many in communities of color have long regarded the police as too quick to stop, to arrest and to shoot African Americans. As Caucasians become a minority in the United States, a new consensus about what is reasonable is emerging.

What’s a police officer to do when business as usual is no longer acceptable?

One chief told me about an encounter he had with a black lawmaker. When the officer told the legislator that arrestees need to be encouraged to comply with police officers’ orders, and to take their disagreements with cops into the courts, the lawmaker responded: “When I hear a white police officer say that, I hear the chains of slavery rattling.”

Really? Talk like that will cost lives of both arrestees and police officers.

I don’t know if we will ever get race relations right in the United States. Frankly, I doubt it. Nothing in racial or ethnic conflict around the world suggests that we will — brotherhood remains a distant, even if a worthy, dream.

By definition, the state enjoys a monopoly on the legitimate use of force. Police officers are the face of the state in our local communities. They are trained in the use violence; the law recognizes their right to use it.

We haven’t always had police forces in this country. They began to appear in the 19th century. Much though I am suspicious of the state and its purposes, I am glad there are cops: When I need assistance, I dial 911, not the telephone number of a local criminal defense lawyer.

I lay blame for much of the current misunderstanding about police use of force at the doorstep of the federal courts. Twenty years ago, federal dockets were clogged with claims against police officers. These cases often went to public trial. An aggrieved party could make his case publicly, and to a jury, about police misconduct.

The judges grew weary of these cases, and struck back, creating a legal doctrine called qualified immunity that was intended to keep all but the most egregious cases from ever seeing the light of a public trial. What’s more, courts began to give police officers the benefit of the doubt in close cases — tossing cases out of the courthouse.

Federal court dockets shrank, fewer police misconduct cases went to trial, and the police became less accountable to the public.

I told the police chiefs to instruct their lawyers not to seek immunity so often. Let the public challenge police use of force in open court. More often than not, juries decide in favor of cops. Why not trust the communities you serve, rather than hide behind the robes of a judiciary accountable to no one?

I learned respect for police officers standing toe-to-toe with them in open court, challenging every decision they made, calling them liars, cheats, scoundrels.

A funny thing happened during these trials: I came to understand the world they inhabit. Their lives are on the line daily. They rarely can foresee which call might be fatal.

I survived my encounter with the police chiefs. I worry that the men and women they lead won’t survive recent changes in public opinion.

(A confession of sorts: I did arrive early at the casino, however, and I did lose money feeding coins into a few slot machines. This fool was easily seduced by the blinking lights.) 


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


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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