Want to improve court efficiency, increase public satisfaction with the courts, and save money? Eliminate individual sequestered voir dire. We are alone among the states in picking jurors in this cumbersome manner. And I bet our court backlog is as old as any state in the nation. When I tell friends from other states how long it takes to get to trial in Connecticut, they are stunned.
Every other jurisdiction in the nation picks juries on a group voir dire basis. A party who wants individual sequestered voir dire can always request it. Some states permit it in capital cases. But the norm is to pick juries in the group method.
I credit Superior Court Judge Linda K. Lager as a pioneer in introduction of group voir dire into the state system. Judge Lager is a former federal prosecutor with first hand experience in group voir dire learned in the federal system. She has been encouraging parties to consider waiver of their right to question jurors outside the presence of all other potential jurors for quite some time. I have yet to hear anyone complain that the results of these cases are unjust, or that the right to pick a fair and impartial jury was in any sense abridged.
The Connecticut Bar Association’s litigation committee is forming a task force to study voir dire reform. Any proposals are likely to be met with resistance, especially by folks with a stake in business as usual. Lawmakers should force change. Lawyers can, after all, adapt.
I’ve heard grumbling from the civil defense bar about getting rid individual sequestered voir dire. I suppose that is not surprising. If you are getting paid by the hour, it makes sense to blow a couple days in voir dire before the almost inevitable settlement. Anecdotal evidence suggests that many cases settle on the eve of trial. Is that because the defense bar makes a little more dough by stringing things along?
Getting rid of the Connecticut’s wasteful voir system could force lawyers to focus on their cases earlier in the game. Imagine the savings if there was a delay of only nine months between filing of a suit and the time of trial. I suspect now there is enormous waste incident to nursing a file along for years.
Another source of complaints about the proposal to abandon individual sequestered voir dire comes from the criminal defense bar. In this case, the arguments appear to be less economic than a fear that group voir dire will yield to poorer quality in jurors.
There is no empirical data to support this fear. No other state offers what we do as a matter of right. I have read nothing suggesting that Connecticut is a beacon for other states. No reform efforts are underway to have others copy our slow-as-molasses manner of bringing a case to trial.
Unfortunately, a part of the motive in opposing change in the criminal system is also the fact that, at least in simple cases, it is not uncommon for state and defense to prepare for trial in earnest only once jury selection begins.
The Connecticut criminal justice system borders on incoherence. Parties are expected to consider plea bargains before substantive motions limiting evidence or suppressing statements are even considered by a court. We assign to presiding judges the function of control-tower operators, wheeling and dealing behind closed doors with counsel in an effort to resolve cases. Only when plea bargainning break down is the case assigned to the trial list. And once it arrives on the trial list, it sits, sometimes for years, until it is assigned a trial judge. This judge then decides substantive motions. Criminal cases are managed without a coherent law of the case guiding negotiations. No one would buy a car without kicking the tires or a road test: Yet clients are expected to plead blind.
Defendants plea, often, when the real work is done: At jury selection. Interminable individual sequestered voir dire fostered this nightmare.
We waste time and money picking jurors in a manner for which there is, simply, no real justification. It’s time for a change.
Reprinted courtesy of the Connecticut Law Tribune.