To Preside or Not to Preside: Questions and Concerns on the Varying Practices of Judicial Participation in Jury Selection

Conversely, attorneys frequently conduct voir dire outside the judge’s presence. When this occurs, judges are left to rule on challenges without the benefit of direct observation of jurors’ initial reactions to the questions asked of them.

Approaches to the supervision of voir dire vary among the courts, raising many issues, including the question of whether judge-supervised jury selection is one area in which more consistency could benefit the bench, bar, and prospective jurors themselves.

Federal Courts’ Approaches

Both the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure allow courts and the parties or their attorneys to examine prospective jurors. Each court is left to decide for itself how exactly it will handle jury selection. The overwhelming majority of federal courts use some form of judge-conducted voir dire—the judge is present during jury questioning and is often involved in the questioning.

State Courts’ Approaches

Some states have a codified preference for judge-conducted, rather than attorney-conducted, voir dire. According to a 2017 article published in the New Jersey Law Journal, judicial participation in voir dire likely stems from courts’ dissatisfaction with jury selection taking too long and lawyers frequently attempting to indoctrinate the jury in their clients’ theories of the case. Consequently, New Jersey’s statutes mandate that both civil and criminal voir dire occur in open court “under the trial judge’s supervision,” with the parties able “to supplement the court’s interrogation in its discretion.” In practice, some judges allow attorneys to speak directly with prospective jurors, while others require that attorneys speak only to the judge, who thereafter relays their questions to the panel.

By contrast, California gives slightly more leeway to attorneys during jury selection. For civil trials, California law requires that the judge conduct an initial examination of prospective jurors and, afterward, allows counsel to conduct voir dire. Importantly, upon stipulation of counsel for all parties, the trial judge may permit counsel to examine the prospective jurors outside the judge’s presence. Likewise, for criminal trials, California requires a similar procedure with the judge conducting initial examination with follow-up questions by counsel afterward. However, for criminal trials, California does not permit voir dire to occur outside the presence of the judge. Moreover, according to the state’s Bench Handbook for 2013, in practice, waiver of a judge’s presence in civil trials rarely occurs “because of the opportunity for abuse,” and most judges allow such waiver only “when they know and trust the integrity of all the attorneys and are engaged in extremely pressing business.”

Similarly, as in California, in Pennsylvania civil trials, after the judge’s mandatory initial screening of jurors, the parties or their attorneys may conduct voir dire unless the court itself conducts the examination or otherwise directs the examination be conducted by a court employee, with any dispute to be resolved by the court. In Pennsylvania criminal trials, however, voir dire must occur before a judge unless the judge’s presence is waived by the attorney for the Commonwealth, the defense attorney, and the defendant, with the judge’s consent.

New York also generally permits a high level of attorney participation in voir dire. For civil trials, New York law states that the trial judge must open voir dire and preside at its commencement. The trial judge then decides in his or her discretion whether to supervise the remainder of voir dire. However, New York law requires that, upon application of any party, a judge must preside over voir dire. A practice commentary on New York Civil Practice Law and Rule 4107 by David D. Siegel notes that attorneys primarily do the questioning and resort to involving the trial judge only when the parties reach some unresolvable dispute, because judges—particularly those in New York City—frequently regard civil voir dire as an uneconomical use of their time. For criminal trials, New York requires the court to initiate voir dire and permits both parties the opportunity to ask questions; however, the judge remains present throughout jury selection.

In Florida, attorney-led voir dire is even more common. For civil trials, Florida law states that parties may examine jurors orally during voir dire and that the court may ask such questions “as it deems necessary.” Likewise, for criminal trials, Florida law allows the court and counsel for the parties to examine prospective jurors; however, like other states, Florida requires that the trial judge preside over voir dire in criminal cases, and that requirement may not be waived by anyone, including a defendant.

Relevant Case Law

Discussion of this issue by appellate courts in Pennsylvania and Illinois sheds further light on courts’ approaches. The Pennsylvania appellate courts recently considered a then-prevailing practice in Allegheny County, which includes Pittsburgh. At issue in Trigg v. Children’s Hospital of Pittsburgh of UPMC was a system in which the trial judge was not assigned to preside over jury selection. Instead, the “Calendar Control Judge” delegated that duty to a court clerk in the Jury Assignment Room, where potential jurors met individually with the clerk and the parties’ attorneys. The clerk then asked standardized questions, with attorney follow-up afterward. If an attorney raised a challenge for cause, the clerk noted the challenge and, after interviewing all potential jurors, returned to the Calendar Control Judge’s courtroom with the attorneys, where the judge, reading a transcript of the voir dire, ruled on the challenges. (While this case was on appeal, Allegheny County’s Civil Division amended its local rules to provide that if any party requests the presence of a judge during voir dire, then a judge must preside.)

In Trigg, a medical malpractice trial commenced in the Allegheny County Court of Common Pleas in March 2017. A prospective juror exhibited potential favoritism toward medical professionals but stated she could follow the judge’s instructions and decide the case based on the facts and the law. Following voir dire, plaintiff’s counsel challenged the prospective juror for cause.  

Before the Calendar Control Judge, but out of the presence of the prospective juror, plaintiff’s counsel requested a ruling on the challenge by reading the transcript rather than asking the prospective juror to come before the judge for further questioning. After reading the transcript, the judge denied the plaintiff’s motion to strike the prospective juror for cause. At trial, the jury returned a verdict for the defense.

On appeal in 2018, state’s middle-level appellate court, Pennsylvania Superior Court, reversed the trial court, writing that “[t]he trial judge acquired none of the wisdom or insight that he could have from noting a juror’s furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language,” and cautioning that

if jurors are individually summoned from the panel to the Calendar Control Judge’s chambers for re-questioning, those jurors will have had extra time to rethink their answers. They may even suspect there was a problem with their original responses and try to ‘fix’ them. In any event, the responses will not be as genuine the second time around.

Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 187 A.3d 1013, 1017 (Pa. Super. Ct. 2018), vacated and remanded, 2020 WL 1932639 (Pa. Apr. 22, 2020).

Pennsylvania’s Supreme Court ultimately vacated the superior court’s decision, in relevant part because it found that the plaintiff had waived her objection to the trial court’s voir dire procedure. Thus, the supreme court did not address the question of whether a trial judge could properly assess a prospective juror’s demeanor in post hoc fashion, or whether it was “essential” for a judge to observe the original voir dire personally. One concurring justice wrote, “It cannot be disputed by anyone who has ever picked a jury that [re-questioning] would have yielded responses that differed in demeanor.” Another concurring justice agreed: “I do not believe that calling the prospective juror in before the judge for a second round of questioning sufficed to replicate the opportunity for personal observation . . . ,” noting that “[d]emeanor and answers together help paint for the judge a picture of the state of mind, personality, and credibility of the prospective juror.”

In Illinois, too, the question of judicial participation in voir dire has seen appellate review. In the 2003 case People v. Wembley, the state’s middle-level appellate court, the Appellate Court of Illinois, considered a situation where the assigned trial judge asked another judge to preside over voir dire in a criminal case while the assigned trial judge conducted a separate voir dire in a related case (the two cases involved co-defendants). The defendant was convicted of first-degree murder in the case in which the assigned trial judge did not supervise the voir dire. The defendant appealed, arguing, inter alia, that substitution of a different judge for voir dire purposes violated his right to a fair trial. The appellate court held that the defendant did not object to the substitute judge conducting such voir dire, nor did he raise it in a post-trial motion; therefore, the court considered the issue waived. Nonetheless, the appellate court addressed the issue of judicial involvement during voir dire.

Specifically, the appellate court noted that there was no bright-line rule that the substitution of a judge during any stage of a trial, including voir dire, was per se reversible error. The court stated that the substitute judge presided solely over voir dire; otherwise, the assigned trial judge presided over all other pretrial, trial, post-trial, and sentencing issues. Ultimately, the court held that the trial court did not abuse its discretion because the record did not show that the trial court’s conduct thwarted the selection of an impartial jury. However, the court did note that a better practice would have been “for the trial court to ask the parties on the record whether they agreed to using a different judge to preside over voir dire.”

Arguments and Questions Moving Forward

While the courts have varying approaches toward judge-supervised voir dire, some themes have emerged, with certain civil courts allowing voir dire out of the presence of a judge but most criminal courts mandating a judge’s presence. This variation raises the question: Should there be more consistency here?

Those in favor of a judge’s presence often contend that prospective jurors may see the judge as an authority figure and consider such presence as endowing the proceeding with dignity, sending the message that jury service is important. In addition, when a judge presides over voir dire, the judge not only hears a prospective juror’s answers but also observes his or her demeanor.

Those same people commonly note that when voir dire is conducted outside a trial judge’s presence, subsequent questioning of particular prospective jurors regarding challenges may be ineffective because those jurors may be less likely to respond to questions honestly if they think their answers have caused problems and may upset the court. Moreover, voir dire can sometimes be more time-consuming when a judge is absent, simply because of the lack of control that judges can exercise over the process.

On the other hand, those in favor of a judge’s absence during civil voir dire argue that total attorney control of jury selection is necessary to produce fair and unbiased juries. Supporters of this approach contend that judges typically know much less about the case than the attorneys and lack sufficient incentives to probe enough in their questioning to discern whether prospective jurors harbor biases about fairly deciding a case.

Those favoring attorney-only voir dire also argue the concern of a scarcity of judicial resources. When judges must spend time presiding over jury selection, their time is diverted from other tasks. Further, judges indirectly supervising voir dire can still “look in” or otherwise keep tabs on voir dire to ensure it proceeds smoothly; this need not be an “all or nothing” proposition.

These varying approaches to judge-supervised voir dire raise numerous questions. Should a certain number or type of judge, i.e., a “jury selection judge,” solely handle voir dire? Would doing so establish a disconnect between the jurors and a different judge when the actual trial began? If a judge is absent during voir dire, in addition to consideration of a court reporter’s voir dire transcript, would video recording of the prospective juror answering questions aid a judge in ruling on challenges for cause, given the opportunity to view real-time body language and demeanor?

Conclusion

If jury selection matters, then the way jury selection occurs likely matters too. It is important to recognize that there can be meaningful differences in, and impacts from, how jury selection is conducted. It is worth considering whether more uniformity in how we select juries might be a good thing for the system.

Matthew N. Korenoski is an associate with Schnader Harrison Segal & Lewis LLP in Philadelphia, Pennsylvania.

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