I started picking another jury in a state court proceeding this week. After two days, we had selected three jurors. We need three more, not to mention the alternates. Odds are, it will take another three days to select the eight people necessary to hear this case. Question: Why take five days to do work that could just as easily and well be done in one day?
I have raised that question on these pages before. Near as I can tell, no one listened. I am not hopeful anyone will listen now either, even though the state’s budget crisis continues to linger. But why not change a jury selection system that is time-consuming and wasteful?
As near as I can tell, Connecticut is the only state in the nation that requires individual sequestered voir dire. We question each potential juror outside the presence of all other jurors ad infinitum. In criminal cases, the case law requires a judge to supervise the tedium; in civil cases, the lawyers are left alone with a potential juror, a judge called in only as need be to sort out disputes. Jury selection in even the most routine case takes two to three days.
In federal court, by contrast, a jury can be selected in half day. I am not endorsing the federal system as applied in most courtrooms in the state, mind you. Voir dire by oracle is not very impressive: in many federal courtrooms, the judge conducts voir dire of a all jurors assembled together in one room. It is an unedifying and unillimunating prospect: scare the Bejesus out of a group of ordinary people by tossing them into a courtroom. Place a man or woman in a black robe behind the bench and sit them on high. Then have this authority figure ask in a clipped and hurried tone whether everyone can be fair. This is less voir dire than indoctrination into judicially sanctioned hypocrisy.
What makes sense is permitting lawyers to conduct group voir dire. We need not sacrifice the right of a party to have his or her counsel ask meanigful questions. Let the lawyers inquire of the group, however.
I have conducted voir dire under both and individual and group method. I discern no appreciable difference in the quality of the jury selected or the results obtained.
One common refrain in support of individual voir dire is that jurors are less inhibited when questioned alone. Frankly, I doubt that. Put a person in the witness box alone and place them in a courtroom of strangers. That is an ostensive definition of stress. Potential jurors are more relaxed in a group setting where they sit with other people in like situation. What’s more, lawyers selecting jurors get a sense of group dynamics, how jurors interact with one another. And when well conducted, a lawyer can use the answers of one venireperson to ask other jurors respond. My sense is that voir dire may be a little better when conducted in a group setting: the responses are freer and franker because other jurors can identify with what other laypeople are saying.
I suspect that a good deal of support for individual sequestered voir dire comes from those lawyers who believe that voir dire is a good place to indoctrinate jurors about a theory of the case. I leave aside whether that is a proper role for voir dire. I note, however, that indoctrination to themes can take place with a group as easily as it does with individuals.
Group voir dire will save court time, save expense, move dockets more quickly and serve the interests of justice. There’s time to prepare draft legislation to advance this objective before the next session of the General Assembly. I hope someone will do so and will hold public hearings on the topic. The time has come for change.
Reprinted courtesy of the Connecticut Law Tribune.
