Proposed Agenda Items For CBA Voir Dire Committee

The Litigation Section of the Connecticut Bar Association is considering creation of a task force to study the method of selecting juries in the state courts. The committee should form such a task force, and resolve to have a full report to the CBA in 2010.

I'm not a committee joining sort, so let me offer my two cents here in the form of proposed agenda items for the task force. My goal is simple: Let's get rid of individual sequestered voir dire.

1. Conduct a survey of the method used for jury selection in civil and criminal cases throughout the fifty states and in the federal court.

2. Determine the length of time between initiation of an action, whether civil and criminal, and disposition by way of jury verdict. Of interest here is whether the delay in getting to trial is substantially longer than the national average, and whether this can be attributed to the length of jury selection.

3. Determine the incidence of individual sequestered voir dire in other jurisdictions. In other words, in what circumstances is is it permitted, if at all. What preliminary showing must be made to get such voir dire in cases where it is permitted.

4. Study the methods used by those states which permitted lawyer-conducted group voir dire. Consider who best to train lawyers in Connecticut to conduct this voir dire.

I stress lawyer-conducted voir dire for two reasons. First, our state constitution requires it in Article First, Section 19. Sequestered voir dire is a statutory right that can easily be eliminated from the books; amending the constitution in difficult.

The second reason I stress lawyer-conducted voir dire grows out of a sense of disdain for the managerial ethos prevalent in the federal courts. Judge conducted voir dire often seems meaningless. I've seen judges rattle through a set of questions with the passion of a toll-booth ticket collector. Of course jurors are inclined to tell judges what they want to hear. Empowering judges to play roles larger than that of referee seems dangerous to me. Confine their role to calling balls and strikes, and let the people decide, I say. That's why we had juries at the founding, before we emasculated panelists by refusing them the right to nullify.

I realize that this distrust of the judiciary confounds a central claim about group voir dire in the federal courts: Namely, that I have seen no appreciable difference in the quality of jurors or outcomes in the Connecticut federal and state courts. It may be that judge-conducted voir dire is as effective as individual sequestered voir dire conducted by lawyers. The CBA should examine this, too.

The Litigation Section is currently chaired by Jim Nugent of Orange. Nugent is perhaps the ideal person to chair this task force. He is a faculty member and board member of Gerry Spence's Trial Lawyers College. When he is not drinking Gerry's Kool Aid, he's actually sensible. And he has become intimately familiarity with how to train lawyers to conduct group voir dire by his work at the college. (Full disclosure: He's also a good friend.)

It's time to kill the wasteful practice of endless voir dire in Connecticut. In the case of State v. Hayes, arising from the Cheshire home invasion involving the Petits, three jurors have been selected after seven days of jury selection. I just completed the 11th day of jury selection in a case in New London: we have eleven jurors. This is simply wasteful and unnecessary.

Conduct a study of how other states pick juries and propose reform in Connecticut. That's a good task for the CBA.

Comments: (1)

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  • Prospective jurors should be trained, period. the ...
    Prospective jurors should be trained, period. the average man or woman off the street in Amerika is NOT qualified for jury duty, an NO examination by judge or attorney in a courtroom setting is going to be able to determine whether a juror is going to be able to understand complex legal and Constitutional issues and 'do the right thing'. These sleepwalking laggards of the classroom are ripe for manipulation by (i) judge and/or (ii) attorney/prosecutor. I believe prospective jurors should should be required to take a two-week crash course in basic jurisprudence and pass a written and oral examination.
    The average high school graduate today knows so little American history and jurisprudence as to be shameful. Then these prospective candidates should be randomly assigned to specific cases, more or less, with participating attorneys allowed their usual challenges for cause and a very limited number of peremptory challenges. Individual sequestered voir dire should be time-limited so as to speed up the process.
    My experiences in the courtroom show me that the average juror in Amerika is unusually beholden to the judge as some kind of powerful authority figure, when the judge's true role, as Norm points out, should be to call balls and strikes. (That judge is best who judges least!) These current practices do not work for me. Jurors who show any streak of independence or individuality from the getgo are normally dismissed by judge or participating attorney for any number of reasons, or no reason (peremptory challenge). This is NOT right.
    Secondly, professional people from a wide range of disciplines are usually excused from jury duty because their activities and expertise is considered to important to be wasted on simple jury duty. In fact, just this past week, Pres. Obama was excused from even having to appear for jury in Chicago, for obvious reasons. I would rather have seen him make a personal appearance just like the rest of us when we are called.
    These practices are backwards and simpley wrong. The most educated and professional persons in society are the ones we want to serve on our juries, precisely because of their training and abilities to think analytically and critically. The Federalist's fears of the common man have come to pass, and are entirely correct in hindsight. The average man off the street today is prone too often to give into emotional and hysterical judgment. That is an unacknowledged dirty little secret of rogue, out-of-control, malicious prosecution that we see today where we lock up more of our citizens than any other 'civilized' country. These folks are the sheeple the judiciary, in practice, places in the jury box to render judgments of guilt or innocence, to the detriment of the defendant. This not how it was supposed to be.
    Selection of judges is of course an important area unto itsself. Remember, when this country was young, legistlators and such other officials had other occupation and skills, such as farming. There were no 'law' schools. Benjamin Franklin was a printer and writer before becoming a founding father. Thomas Jefferson was a multi-lingual and multi-talented 'gentleman' farmer. Even Alexander Hamilton had a distinguished military career. How many legislators and attorneys today can say that they have other talents and skills other than hortatory legalese and double-talk? Two that I can think of: John McCain and John Kerry. Many have dodged military service. Others make a full-time career of lawyering and legislating.
    The law, as I have said, is way too important to be left to the judges and lawyers.
    Posted on January 30, 2010 at 2:35 am by William Doriss

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