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Voir Dire Proposal Gets Strong Reactions Across State

Amaris Elliott-Engel
The Legal Intelligencer
June 07, 2010

A proposed procedural rule that would standardize the voir dire process for selecting jurors in civil cases is eliciting strong reaction across the state.

Among the concerns have been those expressed by judges who said the proposed mandate requiring them to initiate the examination of jurors in open court will disrupt the civil case scheduling systems in the state's two largest judicial districts — Allegheny County and Philadelphia.

The state Supreme Court's Civil Procedural Rules Committee has proposed amendments to Civil Procedural Rule 220.1 in order to standardize the process of jury selection in Pennsylvania's 60 judicial districts, said Huntingdon County Common Pleas Judge Stewart L. Kurtz, chair of the committee. Comment is being accepted from the bench and the bar until Wednesday, June 9.

"It became clear to the committee, very clear that ... the method of jury selection was vastly different [across the state] ... and we felt that it was time there be some standardization of the process of jury selection," Kurtz said. "You would be amazed ... just the difference between civil jury selection today in Philadelphia County as opposed to Allegheny County. It's the difference between night and day."

The committee's quarterly meeting is scheduled to take place June 24. Kurtz said the committee is expected to amend the rule in response to comments received from judges and lawyers, and the committee will probably vote on whether to send the recommendations to the state Supreme Court for the justices' consideration. If a majority of committee members vote to send the proposal to the Supreme Court, Kurtz said, he expects the changes will be adopted, since the justices historically have accepted the committee's recommendations.

Among the proposed changes included in the rule:

  • Judges would be required to initiate the examination of jurors in open court, "including, but not limited to" identifying the parties and their counsel, outlining the nature of the case and explaining the purposes of voir dire.
  • Except for the judges' initial examination, attorneys shall conduct the examination of prospective jurors.
  • Voir dire will be required to be recorded unless waived, but the record does not have to be transcribed unless the court orders a transcription or the parties request transcriptions in writing.
  • Judges also shall permit the examination of jurors beyond the presence of the entire jury panel.
  • Jurors also will be asked if their immediate family is involved in a civil lawsuit or a criminal case, or if their immediate family has an association with law enforcement, lawyers or the court system.

The proposed rule changes conflict with some practices in Pennsylvania's two largest judicial districts.
In Philadelphia, judges can be present during voir dire but do not have to be, but attorneys usually run voir dire and judges are available to address any objections, questions or issues, according to people interviewed for this story.

In Allegheny County, judges are not involved in voir dire at all, unless there is a conflict between counsel that must be resolved by a judge. Instead, a calendar control room clerk reads off questions to prospective jurors.

Until just a little over a year ago, Allegheny County did not allow lawyers to ask questions of jurors, but the rule was changed in the spring of 2009, according to interviews.

Lisette M. McCormick, executive director of the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness, said many of the proposed changes to the voir dire rule reflect recommendations that the commission's jury service committee developed to standardize jury selection in Pennsylvania. The Supreme Court, under the late Chief Justice Ralph J. Cappy, asked the commission to proposed standardized procedures, McCormick said.

The proposal to require that judges make a statement to prospective jurors was based upon findings from a jury trial project in New York, McCormick said. When judges provided more information to prospective jurors, including an outline of the case, before jurors go through the selection process, jurors are less likely to come away with a negative view of jury selection and more likely to identify areas of possible conflict or bias, McCormick said.

It is better for judges than court staff members to ask follow-up questions to jurors who might have indicated they have a problem sitting on a case, McCormick said.

Staff members reading off questions are asking "close-ended questions that essentially rely on juror's self-assessment on their ability to be fair," while judges can use their experience to "formulate open-ended questions ... to make a determination whether that juror in fact can truly be fair or not," McCormick said.

Recording voir dire is important to make it less likely that counsel improperly use peremptory challenges on the basis of race, McCormick said.

Requiring that attorneys conduct the examination of the prospective jurors after judges initiate the case is best because counsel know the case better than judges do, McCormick said.

Virginia Scott, chair of the Allegheny Bar Association's court rules committee and of Ainsman Levine & Drexler, said the proposed voir dire changes resulted in strong opinions from the bench and the bar members of the committee.

Some of the judges who sat on the committee are concerned that civil cases do not get assigned to individual judges until after jury selection and requiring judges to initiate voir dire would conflict with the county's current model of case management, Scott said.

Judge Gene Strassburger, Allegheny County's civil administrative and calendar control judge, said he has submitted a letter to the committee, but he declined comment on his feedback.

The voir dire system was changed in the county last year because "the sentiment among the bar was they wanted more input and they got more," Strassburger said.

Now, the calendar control clerk asks standard questions, but attorneys can follow up on the standard questions or with written questionnaires, which Strassburger rules on before jury selection, the judge said.

Some committee members in favor of having judges involved in voir dire said it is less likely that the entire jury pool would be tainted, Scott said. Others said it was not necessary to have a judge presiding over voir dire, especially because of the "perceived conflict with the mass calendar system," Scott said.
The proposed rule change would eliminate the control Strassburger has to manage issues over striking jurors or removing them for cause because the cases would have to be parsed out to individual judges earlier, Scott said.

Philadelphia Common Pleas Judge William J. Manfredi, supervising judge of the trial division's civil branch, said the court system is opposed to the changes.

Requiring judges to be present at the start of voir dire will conflict with Philadelphia's case management system, Manfredi said. Civil juries are selected on Fridays, and judges are usually charging a jury at the same time they are assigned another case for jury selection.

Philadelphia takes jury selection seriously; commissioned judges address the jury selection room in the morning and a detailed video is played to jurors on which judicial leaders speak to the importance of voir dire, Manfredi said.

The thrust of the rule change is to allow lawyers to examine jurors, he said.

"The rule is designed for jurisdictions where the judges conduct the voir dire and don't allow lawyers as much participation in the process, which is not what Philadelphia is," Manfredi said.

The Philadelphia bench is also concerned about increasing court costs by mandating the recording of voir dire, Manfredi said.

Robert T. Szostak, co-chair of the Philadelphia Bar Association's state civil litigation section and of Rubin Glickman Steinberg & Gifford, said the section opposes mandating the involvement of judges at the initiation of voir dire.

"First and foremost we believe that lawyers, whether they be on the plaintiff side or defense side, they should be able to initiate voir dire and ... identify themselves, identify their client and outline the nature of the case," Szostak said.

Requiring judges to initiate voir dire may result in judges essentially conducting voir dire, he said.

Mark N. Cohen, chair of the Philadelphia Bar Association's rules and procedure committee and a partner with Margolis Edelstein, said the committee's consensus is that voir dire should be initiated by lawyers because counsel know the theories of the case best and trial lawyers find it important to be able to gauge the reactions of jurors as they outline the theories of their case.

The Philadelphia Association of Defense Counsel and the statewide trial lawyers group, the Pennsylvania Association for Justice, are in support of the rule changes.

Montgomery County Common Pleas Judge Kent H. Albright said the proposed rule changes are consistent with voir dire practice in Montgomery County. Judges typically initiate the examination of jurors in open court and let attorneys conduct voir dire, he said.

Voir dire is often conducted privately, and the entirety of voir dire is always transcribed by a reporter, Albright said.