The Perils of Secret Voir Dire


I cannot help but wonder whether the public trial rights of criminal defendants are routinely violated in Connecticut when judges conduct sensitive voir dire by means of the dreaded sidebar. Consider the implications of United States v. Gupta, a 2011 U.S. Court of Appeals for the Second Circuit case.

Raghubir Gupta was convicted of one count of immigration fraud and sentenced to 51 months in prison. During jury selection, a courtroom deputy instructed Gupta's brother and another person to leave the courtroom. He later justified that decision by saying he was directed by the judge in order to assure adequate room for venirepersons and to avoid the risk that those being selected would hear anything about the case from a member of the public.

The Second Circuit did not find this rationale persuasive, holding that Gupta's Sixth Amendment right to a public trial was violated by the court's unexplained exclusion of the public. "The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power," the court noted, citing a U.S. Supreme Court opinion.

Courts can be closed to the public, but in order lawfully to do so, a judge must consider four criteria, to wit: (1) protection of an overriding interest likely to be harmed; (2) the narrowest possible closure must be selected; (3) reasonable alternatives to closure must be considered; and (4) the trial court must make findings necessary to justify the closure.

"A trial court's intentional, unjustified closure of a courtroom during the entirety of voir dire cannot be deemed trivial," the Second Circuit noted. Gupta's conviction was vacated and remanded for further proceedings.

Appellate whizzes will quickly note that what the circuit condemned was closure of the courtroom during the "entirety" of voir dire. Surely isolated confabs between counsel and the court outside the earshot of others in the courtroom is merely a part of the process.

It's a distinction without difference, I say.

Sidebar voir dire frustrates the Sixth Amendment's public trial requirement, and it hides from public opinion critical information about which jurors are selected, or rejected, to do the public's work.

The decision on whether to include or exclude a juror from service is a powerful demonstration of the judicial power. In state court, by contrast, where jurors are questioned outside the presence of other jurors, there is no semi­secret voir dire at sidebar. Critical words spoken about suitability to serve on a jury are spoken in open court—always.

Federal judges typically dread sidebars during trial, viewing them as disruptive and akin to an insult of the jury assembled and patiently waiting in the jury box. Odd how quick these same jurists are to require sidebars during voir dire.

I'm not suggesting that the federal courts adopt individual sequestered voir dire. But there are alternates to the semisecrecy of the sidebar. Venire people who have sensitive information to share about their suitability to serve can be brought into the courtroom one at a time, outside the presence of their peers, to state their reasons in open court.

Perhaps the most interesting thing about Gupta is that it was concerned not at all with the potential embarrassment to potential jurors of stating inconvenient truths in open court. The circuit was driven by a need to preserve transparency of criminal proceedings for the public at large.

I think the circuit got it right, and I am encouraging lawyers to take aim at the semisecret scourge of sidebar voir dire. 

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