Time To Reform Connecticut Jury Selection

Justice delayed, we’re told, is justice denied. In Connecticut, delay is routine. State lawmakers can change that during the current session of the General Assembly. Lawmakers should reform the manner in which jurors are selected in civil and criminal cases. All it would take is a simple change to one state statute.

Lawyers call the process of jury selection “voir dire,” pronounced “vwah deer,” although westerners like to pronounce it “vor dyer.” It is an old French term meaning “to see, to speak.” It is the process of questioning potential jurors to determine whether they can be far and impartial.

In every other state in the union, potential jurors are questioned as a group, with either the presiding judge or lawyers in the case posing questions. Every federal court in the United States, including those in Connecticut, use group voir dire as well. Only in Connecticut do we question potential jurors one at a time, each outside the presence of all others. No one contends that the quality of justice in Connecticut so far surpasses that administered in other states that others want to copy our system.

Because it’s the law, we have a complicated-sounding name for the jury selection in Connecticut — individual, sequestered voir dire. (Say it quickly tonight at dinner, and watch the reaction of others presence at the table.)

The result is that in many cases, it takes far longer to pick a jury than it does to put on evidence in the case. It is not uncommon to take a week or so to pick a juror in a serious criminal case. Indeed, I just tried a murder case in Norwich where that is exactly what happened — six days of jury selection to try a case concluded in less than a week of evidence. By contrast, I’m in trial now in a federal tax evasion case where it took one day to pick the jury.

It takes a long time to get a case to trial in Connecticut. Our dockets are lengthy. Folks lose confidence in a system when they cannot get their cases heard promptly. It is not uncommon to field phone calls from folks looking to replace their lawyer because “nothing is happening” in their case. The sad fact is, you can wait for years to get a jury trial in Connecticut in a simple case. Often there is nothing to do but wait.

We ended up with this slow-motion form of justice as a result the confluence of two forces. First, the state Constitution, at Article First, Section 19, guarantees to all the “right to question each juror individually.” This right can be satisfied by questioning folks in a group setting. The lawyer’s right to ask questions of each in the group is satisfied simply. Just let the lawyer ask as many questions as the group can tolerate.

It’s a state statute that requires the process to drag on by means of questioning jurors one-by-one, out of the presence of others. Connecticut General Statutes Section 54-82f guarantees parties the “right to examine ... each juror outside the presence of other jurors.” Hence, during jury selection, each potential juror is hailed into court, plopped either in a witness box in criminal cases, or summoned to sit with lawyers wherever space can be found in civil cases, and questioned alone.

Plenty of lawyers like individual sequestered voir dire. I heard one dean of the plaintiff’s bar opine once that “real lawyers” like the way we do things, apparently trying to do by fiat would he could not accomplish by argument — persuade folks that Connecticut’s system of selecting jurors is superior. I suspect the real reason some lawyers like the Connecticut method of selecting juries is that it builds delay, and legal fees, into the system. In some harried jurisdictions, jury selection in a civil case can take days, even weeks, on end, as the court staff struggles to juggle its many commitments. Having tried many cases in the state and federal courts, it is obvious to me that there is little qualitative difference between a jury selected in a group-method, as is done in the federal courts, by contrast to the costly state method of sequestered voir dire.

There certainly are cases so sensitive, so complex, that questioning potential jurors outside the presence of others might make sense. But this determination should be made on a case-by-case basis. Let lawyers who think they need a week to do a day’s honest work persuade a judge that Connecticut’s costly selection mechanism is necessary. I repeat: No other state in the nation does it the way we do. Neither does the federal government. I am aware of no nation on Earth that picks juries the way we do. 

The Connecticut Trial Lawyers Association will resist these changes to the death. The lawyer’s lobby doesn’t want to change the way we do business. Why should it — changing the law is sort of like telling a cabby to turn the meter off when the engine is idling. But the fact is that no empirical evidence supports the assertion that we do it better in Connecticut using individual sequestered voir dire. In fact, the evidence is to the contrary — it takes far longer to get a case to trial in Connecticut than it does almost anywhere in the country.

Here’s what’s necessary to change the law. Amend Section 52-84f of the statutes to read as follows: “There shall be a rebuttable presumption that potential jurors shall not be questioned individually, outside the presence of all others.” In legal-speak, a rebuttable presumption is sort of like a default setting. It tells a judge that in the absence of other good reasons, it is presumed that the prescribed way of doing things should be followed.

Yes, change is frightening. We’ve done it our quaint, and now antiquated, way for many years here in the Land of Steady Habits. But we should embrace this change as a means of increasing public confidence in the courts. If lawmakers doubt the wisdom of this view, ask a few judges to come testify about what’s going on in the courts.

They’ll testify that the way we pick juries now adds nothing but cost and delay to an already over-burdened system.

Reprinted courtesy of the Journal Register Co.

Also listed under: Journal Register Columns


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