Ice is melting in a New Haven courtroom, and the world has turned out to watch. Will members of the Connecticut General Assembly pay any attention? Will they open their eyes and realize that individual sequestered voir dire wastes time and contributes little or nothing to the pursuit of justice?
Jury selection is underway in the case of State v. Steven Hayes. He is one of the two men accused of invading the home of Dr. William Petit in the summer of 2007. Hayes and his co-defendant face the death penalty for their roles in the rape and murder of the doctor's wife and two daughters. The men also assaulted Dr. Petit.
The Cheshire home invasion is national news. A photograph of the once happy family has been on the cover of pulp magazines. Already at least one book has been published on the case. Passions run high throughout the state about the men standing trial, with sentiment leaning toward summary execution.
Evidence in the Hayes case is scheduled to begin in September. I say scheduled because it is by no means clear how long it will take to pick a jury. Potential panelists will be summoned to court, indoctrinated, and then subjected to questioning by each side. Jury selection alone could take months in this case.
There is no good reason why this jury cannot be selected in one week's time. Such passion and hatred as the crime evokes need not be addressed one venire person at a time. Jurors are picked routinely in the state's federal courts in a process known as group voir dire, where panelists are questioned as a group. Some judges permit the lawyers to conduct the questioning. I have picked jurors under both systems and discern no difference in the quality of justice delivered in the two court systems.
No other state picks jurors the way we do. And I am unaware of any empirical or even anecdotal evidence that suggests that we are doing a better job of deciding cases in Connecticut.
To the contrary: It takes years to tee up a case for trial in Connecticut's state courts. I suspect that is because of the length of time it takes to pick juries. When it takes three or four days to pick jurors for one day of evidence, each and every trial becomes a week-long event. Friends of mine from other states marvel at the delay we tolerate here. Justice delayed is justice denied, a popular maxim holds. But in Connecticut, justice denied is business as usual. Does anyone really believe that the administration of justice would suffer in Connecticut if we relied on group voir dire, the method used throughout the nation in the federal courts and in every other state?
Supporters of group voir dire claims in yields better jurors. Individual attention, the theory goes, yields candor. I have my doubts. Putting a lay person alone in the witness box and dropping them into a room of strangers terrifies many people. Examining jurors in a setting where they can share their views with their peers is just as likely to foster candor. Those with sensitive issues to raise can always request a side bar. Indeed, the use of side bars for private information better serves juror privacy than asking someone to disclose a painful incident in open court.
Why do we insist on the slow and tortured process? Article First, Section 19 of the Connecticut Constitution declares that "[t]he right to question each juror individually by counsel shall be inviolate." But this is only half the story. Nothing in the state's constitution requires that this questioning be done outside the presence of all other jurors.
What really jams the gears of justice, at least in the criminal courts, is Connecticut General States 54-82f. This statute guarantees a party the "right to examine ... each juror outside the presence of other jurors."
I say start with legislation repealing the statutory guarantee of isolation. The constitution can be satisfied by questioning jurors in the presence of others. And if it doesn't, perhaps we should just amend the constitution. We could save money and promote prompt resolution of disputes with group voir dire. If you doubt the need for this, take a trip to New Haven and watch the ice melt in the Hayes case. No need to hurry; they'll still be picking when the daffodils bloom.
Reprinted courtesy of the Connecticut Law Tribune.
