84 CBJ 285. PANEL VOIR DIRE IN CONNECTICUT: THE TIME HAS COME.

• Author: By Carl J. Schuman(fn*) And David M. Borden(fn**)

Connecticut Bar Journal

Volume 84.

84 CBJ 285.

PANEL VOIR DIRE IN CONNECTICUT: THE TIME HAS COME

Connecticut Bar JournalVolume 84, No. 4, Pg. 285December 2010PANEL VOIR DIRE IN CONNECTICUT: THE TIME HAS COMEBy Carl J. Schuman(fn*) And David M. Borden(fn**)Since 1977, Connecticut has used what can be termed a non-panel individual voir dire system to select jurors. Under that system as currently employed, venirepersons are typically brought into the courtroom or interview room one at a time, and asked questions by the lawyers in the case-sometimes with a judge present, sometimes not, depending on whether it is a criminal or civil case. After the lawyers complete their questioning of each venireperson, the lawyers exercise their challenges to that particular venireperson-a peremptory challenge or a challenge for cause-or accept the venireperson as a juror.

This system is unique. Connecticut is the only jurisdiction-state or federal-in the nation that vests parties with the right to individual questioning of venirepersons in the absence of the other venirepersons.(fn1) As a result, it takes far longer to pick a jury in Connecticut than in any other state or federal district.

In this article, we argue that it is time for Connecticut to make a change to a panel individual voir dire system. Under that system, the right of the parties' lawyers to question the venirepersons individually would be maintained: the difference would be that, instead of bringing each venireperson into the courtroom to be questioned in the absence of the other venirepersons, the venirepersons would be brought into the courtroom in panels and placed in the jury box, where the lawyers could question each of them individually, with mechanisms in place for more private questioning if needed. This system would be consistent with those in the rest of the nation, including the federal courts.

The system we propose, which would amount to no more than a return to the system that was in place before 1977, would also be consistent with Connecticut's history of voir dire. It would be fully constitutional, and require only a statutory change. It would be more sensitive to the needs and feelings of the venirepersons. It would save time-both the time used by the judicial system and the time used by the parties and their lawyers. It would save money-both taxpayers' money expended by the judicial system in picking juries and the money spent by private parties in the form of their attorney's fees. It would preserve the essential characteristics and purposes of voir dire, without significantly impairing the values inherent in the current system, and would, in fact, afford certain benefits to the parties that the current system necessarily sacrifices. It would curb the current widespread practice of many lawyers to use the current system, not for its appropriate purpose of gaining information on which to make a challenge decision, but instead for the inappropriate purpose of persuading the potential juror of the rightness of the lawyer's cause. Finally, it would accomplish all of these improvements without sacrificing the admirable fairness of our jury system.

1. The History of Voir Dire in Connecticut

   The practice of counsel examining potential jurors, at least before any challenge for cause, did not exist under the English common law. The practice eventually became more common as jurors "ceased to be drawn from the neighbors and close acquaintances of the parties, and the functions of the jury were transformed from those of witnesses to those of triers of fact upon evidence produced before them in open court."(fn2)

   Before 1967, however, there was no guaranteed right of counsel or of the parties to conduct voir dire examinations of venirepersons in Connecticut.(fn3) The Connecticut Supreme Court held in a 1908 criminal case that voir dire examination of venirepersons was entirely a matter of judicial dis-cretion.(fn4) In 1913, the General Assembly enacted a statute- the precursor to our current jury selection statutes-providing that, in civil cases, "either party may examine each juror as to his qualifications ... ."(fn5) The legislature extended the application of this statute to criminal cases in 1925.(fn6) It was unclear whether the use of the term "may" in these statutes meant that voir dire examinations remained a matter of judicial discretion.

   In 1967, the legislature amended the statute, by then codified in General Statutes § 51-240, by deleting the term "may" and adding that, in any civil or criminal action tried before a jury, either party "shall have the right to examine personally or by his counsel" each prospective juror. The amendment thus made clear that there is a statutory right to examine venirepersons during the selection process.(fn7) Under this statute, the Supreme Court nonetheless held that a trial court acted properly in denying a request for individually sequestered voir dire and instead providing for panel voir dire in which counsel addressed questions to a group of venirepersons.(fn8)

   Nineteen seventy-two marked an important year in the history of the right to jury trial in Connecticut. Before that year, article first, § 19, of the state constitution had provided simply that "[t]he right of trial by jury shall remain inviolate."(fn9) In 1971, in response to the increasing congestion of court dockets and mounting court costs, the legislature proposed a constitutional amendment to permit six person juries in place of twelve person juries in certain circum-stances.(fn10) To preserve what the legislature perceived as the fundamental character of jury trials, the proposed amendment contained certain jury trial rights previously granted only by statute, including the right of counsel to question each venireperson individually.(fn11) As adopted by the electors of Connecticut in 1972, the amendment provided:The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve without his consent. 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.(fn12) Thus, the amendment "constitutionalized" the previous statutory right to question each venireperson individually by counsel.(fn13)

   On the floor of the state House of Representatives, the sponsor of the amendment, Representative Robert G. Oliver, remarked that "it preserves the valuable rights of litigants to have their perspective [sic] jurors individually questioned by their counsel and apart from other veniremen."(fn14) The suggestion, however, that the amendment preserved or created a right to question each venireperson outside the presence of other prospective jurors proved inaccurate. In State v. Burns,(fn15) the defendant claimed that the trial court's use of the panel voir dire method violated the 1972 amend-ment.(fn16) The Supreme Court rejected that claim, stating that there was "no indication that the relevant part of the 1972 amendment to article first, § 19, was intended to accomplish anything more than to assure that the 'right to question each juror individually by counsel' would be 'inviolate.'"(fn17) The court held that "the constitutional guarantee is satisfied by the discretionary use of a 'box voir dire.'"(fn18)

   The court decided Burns on July 26, 1977. Just before the release of that decision, however, the legislature enacted Public Acts 1977, No. 77-255, which amended § 51-240 to add the phrase "outside the presence of other prospective jurors."(fn19) With this amendment, which took effect October 1, 1977, the pertinent part of the statute read: "In any civil or criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in such action, or as to his interest, if any, in the subject matter of such action or as to his relations with the parties thereto ... ."(fn20) (Emphasis added.)

   The legislative history of this amendment is sparse. Before the Judiciary Committee, a representative of the Office of the Chief State's Attorney opposed the bill on the ground that it would further complicate an already lengthy jury selection process.(fn21) The president of the Connecticut Trial Lawyers Association testified in favor of the proposal. His reasoning was two-fold: (1) the change would eliminate the possibility that prejudicial remarks made by one venireperson would taint the entire panel; and (2) it would actually shorten the jury selection process.(fn22) There was no other substantive testimony. The bill passed both houses of the General Assembly by consent without any substantive debate.(fn23)

   In 1980, the General Assembly enacted a statute titled "An Act Implementing the Law Revision Commission's Technical Revision of the Criminal Procedure Statutes."(fn24) The effect of the act was, in part, to implement the 1972 state constitutional amendment by providing for juries of six in non-capital criminal cases.(fn25) The act also created separate criminal and civil jury selection statutes that retained the essential wording of the 1977 version of § 51-240.(fn26)

   That wording remains...