What's Wrong With Group Voir Dire?
Connecticut’s constitution is unique: Alone among its counterparts, it guarantees that each lawyer picking a jury will have the right to question potential jurors individually. But it does not follow from this right that all other jurors should be sequestered during that questioning. Connecticut lawmakers could save a fortune and speed the administration of justice by eliminating routine individual sequestered voir dire.
It is a commonplace that jury selection often takes longer that the presentation of evidence. Perhaps that is as it should be. Jury consultants often claim that trials are won or lost well before evidence is presented.
But most of these jury consultants work in states other than Connecticut, and only Connecticut has individual sequestered voir dire in every jury case. Most states, and the federal courts, operate on the basis of group voir dire. And pioneering jurists in Connecticut, led by Connecticut Superior Court Judge Linda Lager, are encouraging the practice here.
I tried it once before Judge Lager and it worked well. Obtaining my client’s consent was easy. We were in state court on an unreasonable force case arising under the Fourth Amendment. The case could as easily have been brought in federal court. I’ve tried scores of these cases, and I told my client that in my view it mattered not how the jury was selected so long as the lawyer, and not the judge, was able to ask questions.
In federal court, the system favors what I call "God in the box" voir dire. A federal judge sits atop Mount Sinai and barks out questions that sound like commands. Jurors timidly assent, only rarely asking to approach to discuss what is really on their minds. Federal jurists seem to panic when lawyers ask questions, and lawyer-conducted voir dire is not permitted in the federal courts as a matter of right. The result is a jury selection process that has the look and feel of bidding at a slave auction.
Chief Justice Chase Rogers has convened a committee of lawyers and judges to study voir dire. The panel is considering recommending group voir dire. The recommendation does not go far enough. Group voir dire should be the norm, with exceptions granted only for good cause shown or in special types of cases. Some states, for example, permit individual sequestered voir dire only in capital cases, where jurors are required to dance the morbid tango known as "death qualification."
The panel is said to have two primary concerns.
First, will folks be candid if they are part of a group? The answer is yes. A well-trained lawyer can conduct group voir dire. The key is to get venire people talking to one another. This method of doing voir dire can be learned in a weekend. Gerry Spence’s Trial Lawyers’ College offers such training across the country. My experience is that it is far less terrifying for jurors to acknowledge their views in front of their peers than it is to sit alone in a jury box with everyone staring at them.
Another concern is that the panel may be tainted by someone blurting something out. Let’s rehearse the old canard here: A properly instructed jury is presumed to follow the law. Instruct panel members not to relate particular knowledge about the case or parties, but to ask for a sidebar on such questions. Should someone blurt out a general statement of opinion, participants should regard it as a gift. I was once able to question a group in the courtroom of U.S. District Judge Dominic Squatrito. My client was notorious. When a panelist blurted out scorn for the client and case, I was able to use the opinion to question others. Candor is a gift rarely given in voir dire.
Lawmakers looking to save money can do so easily: Enact a statute requiring group voir dire in all but a handful of cases. Then get out of the way of a court docket that learns to walk after decades of limping.
Reprinted courtesy of The Connecticut Law Tribune.
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