On the day the Pennsylvania Superior Court announced its decision in Trigg v. Children’s Hospital of Pittsburgh (May 14, 2018), a joint ad hoc committee of the Academy of Trial Lawyers of Allegheny County (Academy) and the Allegheny County Bar Association’s (ACBA) litigation section finalized its report and recommendations concerning Allegheny County’s civil jury voir dire process. Over the course of three months, the Committee analyzed several scholar studies; national and local surveys; and, a survey of Academy and ACBA litigators seeking their impressions on Allegheny County’s civil voir dire process.
The Committee highlighted that while the right to trial by jury in civil cases is a bedrock of our democracy, it is an empty mandate if the jury selection process cannot provide for the fair vetting of potential jurors who harbor biases or preconceptions that would prevent them from being fair and impartial. Interestingly, aside from Philadelphia and Allegheny counties, every other county in Pennsylvania had a judge preside over the voir dire process; and, court reporters were routinely provided in every county with the exception of Philadelphia, Allegheny and Bucks counties.
Based upon the Committee’s review of these materials, and their experience with jury selection in various venues, the Committee proposed the following seven changes to Allegheny County’s jury selection process:
- Jurors should be informed about voir dire process during orientation.
Currently, prospective Allegheny County jurors are oriented to their service via videotape and/or live remarks made in the Assignment Room at the beginning of the day. The Committee believes that this orientation should include a brief discussion about the voir dire process and how important it is that the jurors be candid and honest in responding to questions. Jurors should be reassured that there are no right or wrong answers, and that it is completely appropriate to acknowledge that they have certain preconceptions that may be relevant to the case, but inappropriate if they faile to reveal those preconceptions.
- A judge should preside over voir dire.
Through its research, the Committee determined that Allegheny County’s practice of conducting juror voir dire without a judge being present is essentially unprecedented. Because there is no record as to why Allegheny County developed such a process, the Committee surmised that the court determined that it could move cases faster through the system. That said, the Committee determined that for the past 15 years there has been a 55% decline in the number of verdicts in Allegheny County. Thus, the Committee believed that Allegheny County could provide a judge to preside of the jury voir dire process.
- Judges should place less reliance on “rehabilitation” assurances from jurors in ruling on challenges for cause.
The Committee believed that rather than simply accepting a juror’s self-professed ability to be impartial despite earlier biased representations, the process should allow for more neutral follow-up questions that allows the potential juror to articulate a particularity reliable reassurance of their impartiality; otherwise, the presumption should be that they cannot be fair and impartial.
- Attorneys should have greater flexibility on case specific voir dire questions.
As it currently stands in Allegheny County, the parties are permitted five specific voir dire questions; and, the questions involving the potential juror’s “thoughts” or “feelings” on certain issues are typically excluded. The Committee believes that exceptions should be made to expand the number of questions, and also permit questions that seek the thoughts or feelings of a potential juror as the question may be relevant to an inquiry whose purpose is to ferret out bias and prejudice.
- Attorneys should have greater latitude to ask follow-up questions during individual voir dire.
At present, attorneys are only permitted brief follow-up with respect to potential juror’s answers to individual questions. The Committee believes that attorneys, particularly when a potential juror provides a response that may demonstrate bias or prejudice, be granted greater latitude to explore the panel’s answer more thoroughly.
- Attorneys should have more time to review juror questionnaires.
- Attorneys should have more time to review notes before making preemptory strikes.
These final two points are self-explanatory – the Committee simply believes that the Court should be more flexible in allowing counsel to evaluate potential jurors, and they believe that having a judge present will help facilitate this goal.
The timing of this Report and the Triggs decision could not have been better. Hopefully, we will see some long overdue changes to Allegheny County’s jury selection process in the near future.