Jury selection

• Author: Justice Gerald Lebovits
• Pages: 59-92

JURY

SELECTION

2-1

CHAPTER 2

JURY SELECTION

I. PRINCIPLES

A. Governing Law

§2:10 Civil Trials

§2:20 Criminal Trials

B. Participants

§2:30 Judge

§2:40 Litigants

C. Procedure

§2:50 General Rules

§2:60 Methods of Jury Selection

§2:70 Objectionable Behavior by Counsel

§2:80 How to Object

§2:90 Obtaining Rulings

§2:100 Application of Rulings at Trial

§2:110 Invoking Judicial Supervision

D. Examining the Panel

1. Generally

§2:120 Permissible Topics

§2:125 Jurors’ Oaths

§2:130 Ability to Discharge Jury Function

§2:135 Inconvenience

§2:140 Explore Prejudices

2. Limits Judge May Impose

§2:150 Rhetorical and Repetitive Questions

§2:160 Examine Outside Panel’s Presence

§2:170 Time Limits

§2:180 Judicial Voir Dire

E. Challenges

§2:190 Overview

§2:200 To Panel

§2:210 For Cause

§2:220 Peremptory

II. OBJECTIONS

§2:230 Arguing Case

§2:240 Legal Mat ters

§2:250 Repetitiveness

§2:260 Indoctrinating Jur y; Hypotheticals

§2:270 Discriminator y Use of Peremptory Challenges

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JURY

SELECTION

2-3 Jury Selection §2:30

JURY

SELECTION

I. PRINCIPLES

A. Governing Law

§2:10 Civil Trials

Voir dire in New York civil cases is governed by CPLR 4101 et seq., by the Uniform Rules for New York State

Trial Courts, 22 NYCRR §202.33, and by Article 1 §2 of the New York State Constitution, which provides that

the right to a jury trial, in all cases in which it is guaranteed by constitutional provision, is inviolate. Parties may

waive a jury trial in all civil cases in the manner prescribed by law. N.Y. Const. art. I, §2; see CPLR 4101 (list of

cases in which issues of fact must be tried by jury unless waived).

§2:20 Criminal Trials

Voir dire in criminal cases is governed by CPL 270.15 et seq. In addition, Article 1 §2 of the New York State

Constitution permits defendants in criminal cases to waive a jury trial, except in cases in which the crime charged

may be punishable by death. N.Y. Const. art. I, §2. To constitute a waiver, the defendant must sign a written

instrument in person in open court, with the approval of the judge or justice. N.Y. Const. art. I, §2; CPL 320.10(2).

Article 7 §218 of the New York State Constitution provides for a right to a trial by a twelve-person jury.

However, Article 1 §2 of the New York State Constitution permits the defendant to waive this right. People v.

Gajadhar, 9N.Y.3d 438, 850 N.Y.S.2d 377 (2007) (defendant executed a written waiver of his right to a jury of

twelve individuals after a juror became ill during deliberations).

A defendant’s Sixth Amendment right to a public trial applies broadly and encompasses public access to the

jury voir dire. People v. Roberts, 31 N.Y.3d 406, 104 N.E.3d 701 (2018) (right to a public trial was not violated

where the court instructed the defendant’s family member to temporarily step outside the courtroom while the

prospective jurors were seated in order to make room for the general public and prevent the family member from

potentially tainting the jury pool); People v. Martin, 16 N.Y.3d 607, 949 N.E.2d 491 (2011).

B. Participants

§2:30 Judge

Historically, civil jury selection in New York took place outside the presence of the judge. However, to ensure

an ecient and dignied selection process, the Uniform Rules for New York State Trial Courts now require the

trial judge to preside at the commencement of the voir dire and to open the voir dire proceeding. 22 NYCRR

§202.33(e); People v. King, 27 N.Y.3d 147, 155, 50 N.E.3d 869, 874 (2016).

e judge has broad discretion to control and restrict the scope of a voir dire examination. People v. Miller, 28

N.Y.3d 355, 358, 68 N.E.3d 61, 63 (2016).

In criminal cases, a judge must be present during the entire voir dire. People v. Toliver, 89 N.Y.2d 843 (1996).

However, where it was unclear whether a judge who left the courtroom for a ver y short time could or could not

hear the proceedings, the judge’s momentary absence was not a basis for reversing a conviction. People v. Bosa, 60

A.D.3d 571, 875 N.Y.S.2d 79 (1st Dept. 2009).

e trial judge also must:

• Direct the method of jury selection to be used for voir dire from the methods specied in Uniform Court

Rule 202.33(f ). 22 NYCRR §202.33(c); for methods of voir dire, see §2:60.

• Establish time limitations for questioning of prospective jurors during voir dire. 22 NYCRR §202.33(d).

In addition, the trial judge must determine whether judicial supervision of voir dire should continue after

commencement. At his or her discretion, the judge may preside over part or all of the remaining voir dire. 22

NYCRR §202.33(e).

As part of a party’s fundamental right to have a judge preside over jury selection, the judge has the exclusive

right to discharge or exclude jurors. Assumption of that right by the Commissioner of Jurors warrants reversal.

State v. Muench, 85 A.D.3d 1581, 925 N.Y.S.2d 291 (4th Dept. 2011).

e trial judge makes the ultimate determination regarding a prospective juror’s tness to serve. People v. King,

27 N.Y.3d 147, 155, 50 N.E.3d 869, 874 (2016).