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Individual Voir Dire = Justice

Richard A. Silver

March 30, 2016 

Individual voir dire is an important Constitutional and statutory right in Connecticut which provides the litigants an opportunity to discover a potential juror’s bias and prejudices.  The fundamental purpose of voir dire is not to select appropriate jurors, but rather to eliminate potential jurors who have strong bias and prejudices that will be harmful to a party’s case.  Individual voir dire is a vital mechanism to ensure that each party will gain meaningful information to predicate a decision whether to exercise a peremptory challenge or a challenge for cause.

The Connecticut Constitution establishes a party’s right to individually question potential jurors: “In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.  The right to question each juror individually by counsel shall be inviolate” (Article 1, Section 19).

The manner for conducting individual voir dire is also proscribed by state statute.  General Statutes section 51-240 provides: “either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors,” and “[t]he right of examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of the action.”

Some members of the bench and bar have suggested that the current practice of individual voir dire in Connecticut is time consuming and unnecessary and have called for statutory amendments to allow for questioning of potential jurors in groups rather than individually.  These opponents of individual voir dire argue that conducting voir dire of potential jurors in groups rather than individually is sufficient and will expedite the jury selection process.  They also note that the Connecticut Constitution and statutory protection is unique.

While group voir dire may lead to shorter jury selections, the primary concern of any jury selection process should be assembling a fair and impartial jury.  Individual voir dire is the best method of ferreting out jurors who would not be suitable for the case based on impartiality.  These Constitutionally and statutory  guarantees should not be abandoned simply to save time.

The so-called panel examination or box voir dire, which can be conducted by agreement of the parties, has been utilized on a very limited basis and has not been widely accepted by the Connecticut trial bar.  This lack of acceptance is founded on the experience of the trial bar that the box method lacks the ability to bring out the actual bias and prejudice of an individual because of the presence of other panel members.

In individual voir dire, jurors can be asked personal questions that expose juror bias and prejudice that would not be volunteered in a group with other venirepersons.  For example, in a medical malpractice case, if a juror had adverse experience with a physician concerning a personal medical problem, the potential juror would not be comfortable in revealing such an experience in an open courtroom before a panel of 20 potential jurors. The individual examination is conducted in a conducive setting on a one-to-one basis which gives the juror an opportunity to factually respond to specific questions that lead to further investigation.  Thus, a juror’s potential conflicts or bias is readily pursued, protecting both the plaintiff and defendant.

An in-depth study was performed to determine whether venirepersons are more forthcoming while individually sequestered or while questioned en masseThe authors concluded that bias in potential jurors is best revealed when venirepersons are examined while individually sequestered. (Id. See Nietzel and Dillehay, “The effects of variations in voir dire procedures in capital murder trials,” 6 Law and Human Behavior 1, March 1982).

In another study by Judge Gregory Mize, a former trial judge of the Superior Court of the District of Columbia, and co-chair of the D.C. jury project, the judge examined the extent to which individual voir dire resulted in the discovery of juror bias warranting excusal for cause, which had been missed during group voir dire.  (Mize, J., “On Better Jury Selection: Spotting UFO Jurors Before They Enter the Jury Room,”  Court Review, Spring 1999).  Mize found that individual voir dire of potential jurors resulted in more complete and candid responses than voir dire in the open courtroom, without any significant increase in the consumption of time.  Furthermore, Mize found that individually questioning every potential juror revealed background data and beliefs that ultimately avoided the danger of mistrials caused by impaneling biased jurors.

Box voir dire is simply inadequate at detecting juror bias.  Panel voir dire requires the use of primarily leading questions as opposed to open-ended questions.  The substance of a person’s belief is best perceived by letting the juror respond to open-ended questions, e.g., “What is your feeling about [the relevant issue]?” and follow-up questions such as “Please tell me about that.”   The leading questions characteristic of group voir dire instead rely on potential jurors to identify their own biases and come forward with them in front of other potential jurors.  The panel procedure is inadequate because individuals are not always self-aware enough to appreciate their own bias or willing to directly admit to their own bias, particularly in front of other potential jurors.

The box voir dire potentially introduces material that can “infect” the entire panel, such as inappropriate comments or opinions by venirepersons that can affect a whole panel, and which require dismissal of the entire panel.

The en masse voir dire requires that a judge be present during the entire proceeding, whereas the individual voir dire utilized under our present system only requires judicial intervention if a specific issue arises that might affect the panel.

In individual voir dire, pre-screening of potential jurors by the court prior to examination based on questions submitted by counsel eliminates potential disqualifications and saves an enormous amount of time.  The effective utilization of an individual voir dire requires the jury panel to be pre-screened, counsel to start examining the jurors promptly each morning and have sufficient venirepersons to examine for the entire day. Significant delay in picking juries has been caused in some Connecticut jurisdictions where there were not sufficient panel presented for an entire day.  Instances have occurred where there were no panel members available after 11:30 a.m.  This delay in total time in jury selection is directly attributable to lack of adequate number of jurors, not to counsel’s length of examination.

In 2007, the Connecticut Trial Lawyers Association presented a demonstration of both individual voir dire and box voir dire.  The demonstration clearly revealed the difficulty counsel has in conducting box voir dire and the lack of adequate exposure of bias.

Clearly, any potential time saved by abandoning the constitutionally and statutory protected right of individual voir dire cannot justify the likely prejudice of allowing jurors with inappropriate bias and prejudice to sit on the jury.

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