Monday, January 6, 2020

Pennsylvania Superior Court Addresses Standards For a Proper Voir Dire Proceeding


Is a judge required to be on the bench during jury selection?

In the case of Smith v. Cordero, 2019 Pa. Super. 340 (Pa. Super. Nov. 15, 2019) (Op. by McLaughlin, J.), the Superior Court ruled that a trial court erred in denying an estate’s Motion to Strike Two Jurors in a medical malpractice case where the jury selection was conducted by a court clerk and where the jurors had where the jurors had expressed the view that medical malpractice lawsuits had affected the cost and availability of medical services. In light of this ruling, the judgment in the underlying case was vacated.

Interestingly, the Superior Court noted that the previous decision in the case of Trigg v. Children’s Hospital of Pittsburgh, 187 A.3d 1013 (Pa. Super. 2018), appeal granted, 201 A.3d 145 (Pa. 2019) did not serve to impose a requirement that a judge be present during voir dire, but rather, only merely addressed the applicable appellate standard of review on a jury selection issue where a judge did not participate in the voir dire.

The court did find that the Trigg appellate standard of review applied in this matter. Under that standard of review, the court ruled as stated.

The Superior Court in this Smith case noted that, while the two (2) jurors at issue stated that they could still follow the judge’s instructions and be fair and impartial, the trial court judge was not present to hear the jurors’ tone of voice or to address their demeanor when they provided this information. As such, the Superior Court found that the trial court judge could not know whether the jurors could really be fair and impartial.

Given that the jurors’ answers expressed the “slightest ground of prejudice” required for their dismissal from the jury pool, the appellate court stated that the trial court should have granted the motions to strike the jurors for cause.

As such, while it appears that a trial court judge may not be required to be on the bench at the time of jury selection, the Pennsylvania Superior Court has again strongly suggested that it is the better practice for a judge to be present during voir dire to assess the demeanor and testimony of a potential juror when that juror is first questioned regarding his or her ability to be fair and impartial to with respect to the parties involved.

As noted in the Trigg citation above, this issue may be addressed by the Pennsylvania Supreme Court in the near future.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Dec. 3, 2019).

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