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.