PRACTICE AND PROCEDURE

JURY SELECTION - PART I

William F. Gallagher

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I. Constitutional Provisions and Relevant Statutes.

A. Constitutional provisions.

Connecticut is the only state that constitutionally guarantees individual voir dire and peremptory jury challenges. Article I Section 19 of the Connecticut Constitution, as amended by Article IV of the amendments to the constitution, reads:

The Supreme Court has stated that Article I Section 19 of the Connecticut Constitution, as amended, reflects "the abiding belief of our citizenry that an impartial and fairly chosen jury is the cornerstone of our criminal justice system." State v. Hancich, 200 Conn. 615, 625 (1986); State v. Tucker, 226 Conn. 618, 630 (1993). The constitutional standard of fairness requires that a defendant, or plaintiff in a civil case, have a panel of "impartial," "indifferent" jurors. State v. Esposito, 223 Conn. 299, 308-309 (1992). It is clear that the citizenry of Connecticut does not limit its abiding belief that an impartial jury fairly chosen is the cornerstone of only our criminal justice system. It applies equally to our civil justice system.

Article I Section 19 was amended in 1972 by the adoption of the Fourth Amendment. Previous to this the constitutional provisions stated only that the "right of trial by jury shall remain inviolate." In Rozbicki v. Huybrechts, 218 Conn. 386, 391-392 (1991) the court set out the legislative history and purpose of the Amendment:

The court noted, 218 Conn. at 392 n. 2 that the provisions concerning peremptory challenges and the individual voir dire "appeared to be unique to Connecticut's Constitution." It further stated (Id.):

The Constitution says nothing about the entitlement to question each juror individually in the absence of other jurors.

Section 51-240 applies to civil cases and provides:

Section 54-82f (formerly part of §51-240) provides for voir dire examination in criminal cases:

The jury selection rules for criminal cases are set out in §§839 to 850 of the Practice Book. For the most part they mirror the provisions of the statutes, and are not set out in detail here.

In 1991 the judiciary proposed legislation, Raised Bill No. 7381, which included provisions to delete the phrase in §51-240 "outside the presence of other prospective jurors," and add the following:

This bill made the same proposed changes in Section 15 to 54-82f. Although the bill was heard by the Judiciary Committee, it was not reported out favorably and died in Committee.

C. Number of peremptory challenges.

Section 51-241 provides:

Section 51-243 provides for alternate jurors in civil cases as follows:

It is a rare case where alternate jurors are not selected. The statute merely provides that in any case where the court directs the selection of alternate jurors, "each party may peremptorily challenge four jurors." There is no authorization in the statute to limit the exercise of the additional challenge to alternates.

Both of these statutes, §51-241 and §51-243 were amended in 1993 by Public Act 93-176, the so-called "Unity of Interest" legislation. This legislation gives the court discretion to allow additional peremptory challenges and to allocate them among parties, or lump them together for the parties to sort out.

Subsections (b), (c), (d) and (e) of §51-243 provide as follows:

The number of peremptory challenges in a criminal prosecution are as follows (§§54-82g and 54-82h):

Regular Alternates

Death 25 30

Life 15 18

State's Prison for

more than one year,

but less than life 6 8

All other offenses 3 4

The state and the defendant are given the same number of challenges. The number is determined by the count carrying the highest maximum punishment.

In State v. Williams, 231 Conn. 235, 242 (1994) the court sanctioned the substitution of a discharged alternate after deliberations had begun, in violation of §54-82h(c), which provides, as does §51-243(e) that the alternate juror "shall be dismissed" when the regular panel commences deliberation. The court held the error harmless. It placed upon the defendant the burden of proving that he was harmed by the substitution of the alternate juror. The court noted that the trial court took several precautions, which included questioning the alternate juror to see if he was still qualified to sit, questioning the remaining jurors to see if they could recommence deliberations, and instructing the jury three times to disregard prior deliberations and to begin deliberations anew. These were held sufficient to prevent prejudice to the defendant and to protect the "integrity and fairness of his trial." 231 Conn. at 244-245.

D. Manner in which panel is selected.

Section 303 of the Practice Book provides:

II. Purpose of Voir Dire and How Conducted.

The purpose of voir dire examination is set out in §51-240(a) which provides in part:

The statute further provides that if the judge before whom the voir dire examination is conducted is of the opinion from such examination that any juror would be unable to render a fair and impartial verdict, such juror "shall be excused by the judge from any further service upon the panel, or in such action, as such judge determines."

Section 304 of the Practice Book provides:

The provision concerning deafness or hearing impairment became effective October 1, 1986. Prior to that, the Practice Book was amended by the addition of §303A effective February 15, 1986 which provides:

In State v. March, 168 Conn. 520, 528 (1975), Justice Loiselle, writing for a unanimous court, stated:

The trial court has wide discretion in conducting the voir dire and the exercise of that discretion does not constitute reversible error unless it has "clearly been abused or harmful prejudice appears to have resulted." Bleau v. Ward, 221 Conn. 331, 340 (1992). In exercising its discretion, the court should "grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges." State v. Couture, 218 Conn. 309, 318 (1991).

In conducting the voir dire examination, however, the trial court's discretion is not absolute. Voir dire is said to be limited to those questions "`which are pertinent and proper for testing the capacity and competency of the juror . . . and which are neither designed nor likely to plant prejudicial matter in [the jurors' minds].'" Bleau v. Ward, 221 Conn. at 340, quoting Duffy v. Carroll, 137 Conn. 51, 57 (1950). However, if there is any likelihood that some prejudice is in the juror's mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. State v. Rogers, 197 Conn. 314, 318 (1985); State v. Fritz, 204 Conn. 156, 161 (1987); State v. Higgs, 143 Conn. 138, 142 (1956).

Moreover, "[t]he permissible content of the voir dire questions cannot be reduced to simplistic rules, but must be left fluid in order to accommodate the particular circumstances under which the trial is being conducted. Thus, a particular question may be appropriate under some circumstances but not under other circumstances." Bleau v. Ward, 221 Conn. at 345 (Berdon, J., concurring in part and dissenting in part, cited with approval by a unanimous court in State v. Skipper, 228 Conn. 610, 627 (1994)).

In short, the trial court has broad discretion to determine the latitude and the nature of the questioning that is reasonably necessary to search out potential prejudices of the jurors. See: State v. Skipper, 228 Conn. at 627; State v. Couture, 218 Conn. at 317-19; State v. Cross, 72 Conn. 722, 730 (1900); State v. Lewis, 26 Conn. App. 574, 578, cert. denied 221 Conn. 923 (1992).

In State v. Anthony, 172 Conn. 172, 176 (1976), fourteen members of a larger panel were selected by lot and seated in the jury box, with the remainder of the panel returning to the jury assembly room. The court noted that such a procedure in conducting the selection of a jury "is a permissible one so long as counsel are allowed to direct their questions to individual prospective jurors ..." 172 Conn. at 173.^* The court imposed a limit of one hour for the examination of the 14 that had been placed in the jury box. When this group was exhausted, a second panel of 14 was questioned, with a similar limitation. A third panel was necessary to complete the jury, and this time the court set the limit at 45 minutes. The defendant duly objected and excepted to the fixed time limitations as an arbitrary exercise of the court's discretion.

The Supreme Court held that notwithstanding the wide discretion afforded, "we must nevertheless conclude that the ruling of the trial court in this instance was an arbitrary one." 172 Conn. at 176.

The court stated (172 Conn. at 176-177):

In discussing the reason for the wide discretion afforded to the trial court, the court stated (172 Conn. at 175):

In Rozbicki v. Huybrechts, 218 Conn. 386 (1991), the court held that the plaintiff's absence from voir dire in a civil trial requires a new trial absent a showing of no prejudice by defendant.

An attorney brought suit to recover legal fees. Defendant counterclaimed for loss of profits from sale of her home to plaintiff. On December 14, 1988, Judge Moraghan ordered that jury selection begin January 3, 1989. On December 16, 1988, plaintiff moved for continuance asserting a state constitutional right to be present during voir dire and explained that he had a prior court commitment preventing him from being present. Judge Dranginis ruled that he had a constitutional right to be present but that he had waived that right. She denied the motion and jury selection went forward in his absence although the trial was continued until he could be present. Plaintiff did not object to any jurors who had been selected. There was a verdict and judgment for the defendant on the complaint and counterclaim.

The Appellate Court held (22 Conn. App. 131, 133-6 (1990):

(4) the plaintiff was therefore entitled to a new trial.

The Supreme Court affirmed, holding that a party's constitutional right to a civil jury trial encompasses the right to be present in court during all phases of the trial, including proceedings prior to the trial. 218 Conn. at 390. A party may recognize, during voir dire, a potentially prejudicial relationship that counsel may not pick up. 218 Conn. at 391.

The Supreme Court held that the error was a constitutional dimension because the right to be present at voir dire is protected by the Connecticut Constitution. Accordingly, the defendant had the burden of disproving prejudice. The court stated, 218 Conn. at 396:

The right to be present may be waived if not specifically asserted.

III. Challenge to Array.

A challenge to the array of jurors is "an objection to the whole panel of jurors at once, and in order to be available it must be for cause that affects all of the jurors alike." State v. Cobbs, 164 Conn. 402 (1973) (citations omitted). "The American tradition of trial by jury . . . necessarily contemplates an impartial jury drawn from a cross-section of the community." State v. Robinson, 227 Conn. 711 (1993), quoting Thiel v. Southern Pacific Railroad, 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed.2d 1181 (1946); see also, Holland v. Illinois, 493 U.S. 474, 480, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990); Taylor v. Louisiana, 419 U.S. 522, 527, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975); State v. Tillman, 220 Conn. 487, 492, cert. denied ____ U.S. ____, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). "This fair cross-section requirement mandates that the jury wheels, pools of names, the panels and venires from which the juries are drawn must not systematically exclude distinctive groups in the community." State v. Robinson, 227 Conn. 711, 717 (1993).

The U.S. Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), articulated the standard for a constitutional challenge to the composition of a jury array based on the fair-cross-section requirement. The Duren test is based on the Sixth Amendment to the Federal Constitution and has been adopted by the Connecticut Supreme Court. See, State v. Castonguay, 194 Conn. 416, 421-422 (1984). In Duren, the court stated (439 U.S. at 364):

To satisfy the evidentiary burden under the first part of Duren's three part test, the defendant would have had to establish the discriminatory exclusion of a "distinctive group." State v. Tillman, 220 Conn. at 496. "While there is no precise definition of the term 'distinctive group' . . . such a group must have, first, 'some factor which defines and limits the group'; second, 'a basic similarity and attitudes or ideas or experience which is present in members of the group and which cannot be adequately represented if the group is excluded from the jury selection process'; and third, 'there must be a possibility that exclusion of the group will result in partiality or bias on the part of juries hearing cases in which group members are involved.' State v. Tillman, 220 Conn. at 496-497.

Satisfaction of the second prong of the Duren test of fair and reasonable representation of the group involved is controlled by the "substantial impact" test. See, State v. McCarthy, 197 Conn. 247, 250-251 (1985). "Under the substantial impact test . . . the 'focus is not on numbers and percentages but rather on whether the underrepresentation substantially affects the composition of the grand or [petit] jury.'" "Thus '[t]he disparity is measured in terms of its impact on juries, not simply percentages in the abstract. This analysis allows the courts to reject challenges when the challenged practices did not significantly alter the composition of the typical grand or petit jury.'" State v. McCarthy, 197 Conn. at 251. Once the three prong Duren test has been satisfied the defendant has made out a prima facie case of an unconstitutional jury selection. "Once the defendant has established his prima facie case, the burden then shifts to the state to prove that the selection system resulting in a non-representative array furthers a significant State interest." State v. Tillman, 220 Conn. at 492, citing Duren v. Missouri, 439 U.S. at 367-368.

The Duren test, however, is not the only standard for determining the validity of a jury selection process. "A jury array that does not violate Duren by underrepresenting any distinctive group may nonetheless be challenged if unconstitutional criteria were used in selecting its members." State v. Tillman, 220 Conn. 487, 493 (1991). This second test was articulated in State v. Nims, 180 Conn. 589 (1980).

In Nims, the court ordered a new trial when the jury clerk divided the array cards from which the jury panels were to be chosen into separate files for men and women. Although this procedure did not result in the underrepresentation of either sex, the court held that it did discriminate on the basis of sex. The court noted that "the end result is irrelevant. It is the method of selection which offends the constitution." Nims, 180 Conn. at 595-596 (emphasis in original).

The Nims test of the constitutionality of the method of selection is based on due process principles. According to the court in Nims (180 Conn. at 595):

The court noted that "classifications based on sex, like classifications based on race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny." State v. Nims, 180 Conn. at 596.

The constitutional requirement of an impartial jury drawn from a cross-section of the community applies to civil as well as to criminal procedures. See, Bradford v. Brennan, 42 Conn. Supp. 534, 543 (1993), citing Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 2088, 114 L.Ed.2d 660 (1991); Thiel v. Southern Pacific Company, 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed.2d 1181 (1946). "This right is protected by Article First, Section 19, of the Connecticut Constitution as well as by the Federal Constitution." Bradford v. Brennan, 42 Conn. Supp. at 543. "Although Section 19 does not explicitly guarantee a civil trial by an 'impartial' jury as do Section 10 of Article First of the State Constitution and the Sixth Amendment of the Federal Constitution for criminal trials, it is clearly implicit." Williams v. Coppola, 41 Conn. Supp. 48, 53 (1986), citing State v. Castonguay, 194 Conn. 416-420 (1984). According to the court in Williams, "fairness and integrity in the selection process [are] always the touchstone." Williams, 41 Conn. Supp. at 55. However, the "jury array need not mirror the sociological composition of the community . . . or be mathematically proportionate to the percentage of the group in the community. Substantial underrepresentation is required to make out a prima facie case." Williams, 41 Conn. Supp. at 55.

Practice Book §842 entitled "Jury Trials - Challenge to Array" states:

The timing of a constitutional challenge to jury selection is an issue to be kept in mind by the practitioner. State v. Ferraro, 146 Conn. 59, 63 (1958), cert. denied, 369 U.S. 880, 82 S.Ct. 1155, 8 L.Ed.2d 283 (1962) holds that "a challenge to the array comes too late if it is made after the verdict, even though the irregularity may not previously have been known." State v. Tillman, 220 Conn. at 494 but see, State v. Nims, 180 Conn. 589 (1980) (ordering a new trial when an unconstitutional method of jury selection is discovered after trial). According to State v. Tillman, "where a constitutional flaw is discovered and brought to the court's attention before jury selection is complete, and good cause can be shown for the defendants failure to mount an earlier challenge, the Practice Book is not a procedural road-block." State v. Tillman, 220 Conn. at 494.

Another issue to be aware of is the quantum of evidence that is required of the defendant to present to the court. "A challenge to a jury array will fail if the defendant presents no evidence to the court." State v. Tillman, 220 Conn. at 496. "A representation by counsel does not meet this evidentiary requirement." State v. Tillman, 220 Conn. at 496.

Standing is another issue to be kept in mind. The court in State v. McCarthy, 197 Conn. 247, 251 (1985), in footnote 5, states that

IV. Challenges for Cause.

A. Statutory.

Section 51-217 provides for the qualifications of jurors. The statute sets out minimum requirements (must be elector or resident citizen who holds driver's license) and then provides that certain persons "shall be disqualified from service." These are set out below.

The statute mandates that all jurors "shall be electors, or citizens of the United States who are residents of this state and listed in the records of the Motor Vehicle Department as persons to whom motor vehicle operators' licenses have been issued.

In Selleck v. Sugar Hollow Turnpike Co., 13 Conn. 453, 459 (1840) there was a question as to whether a juror was an elector, he having moved to another state and became a voter there, then came back and was domiciled in Connecticut, but was never "admitted and sworn" as an elector again. The court held that the defect, having been first raised after verdict, was waived.

2. Juror must be 18.

The statute mandates the age. Obviously, person could not be an elector below the age of 18, but it is possible to be a "citizen of the United States who is a resident of this state and listed in the records of the Motor Vehicle Department as a person to whom a motor vehicle operators' license has been issued." Since operators' licenses can be issued at age 16, the statute specifies age 18.

In State v. Brockhaus, 72 Conn. 109, 116, 43 A. 850 (1899) it was discovered after verdict that one of the jurors was a few months shy of 25, the statutory age for jurors. The court held that the error was cured by the verdict. Only defects going to juror's honesty or impartiality are not waived, unless known during trial and not brought to the court's attention.

3. Any quality impairing capacity to serve.

Subsection (A) of §51-217 expressly provides that a juror is disqualified if "found by a judge of the superior court to exhibit any quality which will impair his capacity to serve as a juror." Excepted from this section is deafness or hearing impairment, which is not a grounds for disqualification. See: Practice Book §§303A, 304, 843 and 846A.

4. Conviction of felony in past seven years.

Subsection (B) provides that a juror is disqualified if "convicted of a felony within the past seven years . . . "

5. Defendant in pending felony prosecution.

Subsection (B) further provides that a person is disqualified if a defendant in a "pending felony case . . . "

6. In custody.

Subsection (B) further provides that a person is disqualified if "in the custody of the commissioner of correction."

7. Must understand and speak English.

Subsection (C) provides that a juror is disqualified if "not able to speak and understand the English language."

8. High political office.

Subsection (D) provides that the governor, lieutenant governor, secretary of state, treasurer, comptroller or attorney general are "disqualified to serve as a juror."

9. Member of general assembly in session.

Subsection (F) disqualifies a person who is a member of the general assembly, "provided such disqualification shall apply only while the general assembly is in session."

10. Is 70 or more and does not want to serve.

Person is disqualified from service under subsection (G) if "70 years of age or older and chooses not to perform juror service."

11. Has physical or mental disability.

Subsection (H) provides that a juror is disqualified if "incapable, by reason of a physical or mental disability, of rendering satisfactory juror service." In this connection, the statute provides that the juror must submit a letter from a physician to the jury administrator stating the nature of the disability and the physician's opinion that such disability prevents the person from rendering satisfactory jury service. The statute sets out the guideline for the physician:

12. Judges are disqualified.

The statutes provides that judges of the superior court, appellate court, supreme court or federal court are disqualified.

13. Service twice in two years.

Section 51-217a provides that a "person shall be excused from jury service . . . upon request of that person, if during the next two preceding years such person appeared in court for jury service and was not excused from jury service." What the statute means is that if the juror elects, he or she does not have to serve in any two year period immediately preceding the second jury service. For example, if a juror served in 1994, and was called again in 1995, it would be appropriate on the voir dire to call to the attention of the juror that, upon request of that juror, he or she "shall be excused from jury service" because a person cannot be obligated to serve twice in any two year period.

14. Extreme hardship.

Section 51-217a gives the court the "authority" to excuse a juror from service upon a finding of extreme hardship.

Section 51-232b provides that notwithstanding the provisions of §51-217a, a juror "may be impaneled in a new case not sooner than three months after he has been in attendance as a juror."

Section 51-232(c)(3) provides:

authorized agents. Such completed question-

This statute creates a right to use the questionnaire during voir dire. In State v. Smith, 138 Conn. 196, 203 (1951) the court held that calling of a person off the street to sit on a jury did not deprive counsel of his right to see the questionnaire because counsel could have asked the appropriate questions on voir dire.

B. Common law.

The leading Connecticut case is McCarten v. Conn. Co., 103 Conn. 537 (1925). This case held that in addition to statutory grounds, grounds exist for challenge for cause at common law. Among these are alienage, infancy, conviction of certain infamous crimes, and bias and prejudice. All except the last two are governed by §51-217. At common law there are two kinds of challenges for bias and prejudice: a principal challenge, and challenge to favor.

Principal challenge is one that, if grounds are proved, the juror's disqualification is conclusive and cannot be rebutted. The juror must be excused. If, however, it is not raised until after verdict, nothing can be done, as it is held to be "healed" by the verdict and there is no remedy to correct it. 103 Conn. at 542. See also: Johnson v. New Britain General Hospital, 203 Conn. 570, 580 (1987); Morgan v. St. Francis Hospital & Medical Center, 216 Conn. 621, 623 (1990).

It is useful to quote the language of McCarten (103 Conn. at 542, 543):

Grounds for a principal challenge consist of the following:

1. Relation to party.

2. Former service as arbitrator on either side.

3. Interest in outcome. This can be personal or as a member of a corporation. McCarten held that a juror who was a pensioner of a corporation owned by the defendant corporation was not disqualified, as the pecuniary interest was "too remote to merit serious consideration." 103 Conn. at 545.

The old cases held that if a juror was an inhabitant of a party town, it would be a ground for challenge. See, Bailey v. Town of Trumbull, 31 Conn. 581, 583 (1863). Bailey was an action for injury from a defective highway. A juror who sat was a land owner and resident taxpayer in the town, and the court held that this was a disqualification, but since the juror was not asked this question on voir dire, the defect could not be attacked after verdict.

A contrary result was reached by Judge Blue in Bradford v. Brennan, 42 Conn. Sup. 534 (1993), a negligence action against the City of Waterbury and a city employee for personal injuries from an exploding firecracker that was thrown into a public high school lavatory. The court refused to follow Bailey v. Trumbull and held that a taxpayer or resident of the City was not disqualified. The court examined the common law background of the Bailey decision, Bailey and its progeny in Connecticut, the development of the law in other states, constitutional considerations concerning jury selection, the execution of a potential judgment, demographic changes, and concluded that Bailey is not controlling under present circumstances and refused to follow it.

4. Master servant relation.

5. Steward. Black's Law Dictionary defines "steward" as "a man appointed in the place or stead of another, also a principal officer within his jurisdiction." Illustrations are "land steward," and "steward of a manor." This appears to be a "managing agent" in today's parlance.

6. Attorney relationship. See, French v. Waterbury, 72 Conn. 435, 437 (1899) where the court held that defendant could question jurors re former association with plaintiff attorney, but court itself was not bound to do so.

7. Landlord - tenant.

8. Conversation with party on merits.

9. Formed or expressed an opinion on question or issue. In State v. Taborsky, 147 Conn. 194, 214 (1960) jurors admitted that they formed an opinion as to the guilt of the accused from newspapers, radio and TV, but were allowed to serve because they said they could disregard the opinion formed and decide the case on facts.

In State v. Wilson, 38 Conn. 126, 138 (1871), cited with approval in State v. Taborsky, a juror expressed an opinion on the guilt of the defendant, who was accused of killing the warden of state's prison. The court stated:

A challenge to the favor is one where the connection is more remote. The connection tends to show bias, but does not create a conclusive presumption of bias. Whether such bias exists in this circumstance depends on the evidence, and the determination lies within the discretion of the court.

The major difference between a principal challenge and challenge to the favor is that if facts indicating that there was a basis for challenge for favor are discovered after the verdict, this can be grounds for a new trial, unless known during the trial and thereby waived.

This distinction is set out in Morgan v. St. Francis Hospital & Medical Center, 216 Conn. 621, 624 (1990), a case which illustrates the differences. Morgan was a medical malpractice action which was lost. The plaintiff claimed that the trial court should have disqualified for cause jurors who were employed by the defendant's insurance company. The defendant's carrier was the Aetna, and three of the six jurors who decided the case were employees of the Aetna. Justice Covello wrote (216 Conn. at 624):

The plaintiff argued that a principal challenge, not a challenge to the favor, was implicated by the Aetna employees being on the jury. He therefore claimed that the jurors in question should have been disqualified as a matter of law. This would obviate the necessity for the plaintiff to show prejudice. The plaintiff's argument was that because Aetna would be required to pay any judgment in the event of a verdict for the plaintiff, Aetna became, in effect, a party in interest to the action. In support of his argument, the plaintiff relied on Atlanta Coach Co. v. Cobb, 178 Ga. 544, 549-551, 174 S.E. 131 (1934) in which it was held that an employee of the defendant's insurer should have been disqualified as a matter of law.

The court did not follow the Georgia decision or buy the plaintiff's argument. In Georgia evidence that the defendant carries liability insurance was generally admissible, unlike Connecticut. The court held that the connection was not sufficient to bring about a principal challenge and that factually the plaintiff had not demonstrated that the employees of the Aetna even knew that Aetna was the insurer, notwithstanding that an Aetna adjuster was in the courtroom during the trial. The court on this point said that the plaintiff had failed to show that the jurors knew the identity of the adjuster. 16 Conn. at 626.

V. When Exercised.

A. Non-constitutional challenges.

Unless a constitutional challenge is implicated, a challenge for cause or a peremptory challenge should be exercised at the conclusion of the voir dire examination of the individual juror. If the juror is accepted, but not yet sworn, the exercise of a challenge, peremptory or for cause, is within the discretion of the court. DeCarlo v. Frame, 134 Conn. 530, 535 (1948); Walczak v. Daniel, 148 Conn. 592, 597 (1961).

DeCarlo found error in allowing a challenge as a matter of right after the juror was accepted but before sworn. In Walczak the juror was accepted. After a court recess (and before the jury was sworn) plaintiff informed the court that during the recess he had learned that the juror was a frequent "letter to the editor" writer and was noted for his attacks on spending and waste. 148 Conn. at 596. The trial court refused to permit a peremptory challenge. The Supreme Court stated (148 Conn. at 596-597):

In State v. Potter, 18 Conn. 166, 177 (1846), the court held that counsel has no right to challenge a juror already accepted but not yet sworn in the absence of any reason for peremptory challenge which did not exist before. In other words, something new must develop after accepting a juror and before the juror is sworn to form a basis for a challenge.

B. Constitutional challenges.

The problem here is discerning a pattern of impermissible discrimination. This may not be apparent right away. This issue is discussed in Part II, to be published in the next issue of the Forum.

VI. Permissible Questions.

The general rule, enunciated by Justice Berdon in Bleau v. Ward, 221 Conn. at 345, concurring in part and dissenting in part, cited with approval by a unanimous court in State v. Skipper, 228 Conn. at 624, is:

Notwithstanding this flexible approach, it is possible to cull from the cases some general rules.

In Sherman v. Ryan & Sons, 126 Conn. 574, 578 (1940), a question was posed whether the fact that a boy was walking with his cap pulled down over his face would prejudice jurors. This was held improper, as eliciting in advance an opinion on an assumed state of facts which has not been shown. In Duffy v. Carroll, 137 Conn. 51, 56 (1950), the court stated:

In Sherman, the court stated, 126 Conn. at 578-579:

The case was reversed on other grounds, and the Supreme Court indicated that although the question was within the discretion of the trial court to allow, it ought not to permit hypothetical questions intended to elicit from a juryman in advance what his decision would be on the facts assumed.

It is clear, however, from this case as well as from practice across the state and other Supreme Court decisions, discussed infra, that questions raising facts likely to arouse hostile emotions are permitted. The fact that an important witness has had an abortion has been approved. Questions concerning interracial marriage, suicide, the use of motorcycles, etc., all have their place on voir dire for the purpose of ascertaining the likelihood of prejudice. It is simply impossible to ascertain this likelihood without getting into some facts.

It is common practice for counsel on both sides of the case to inquire of a prospective juror as to their experience with matters which may be involved in the case. For example, if there is a claim of trauma aggravating multiple sclerosis, questions are frequently asked concerning experience or knowledge of this disease. Similarly, questions concerning problems with heart attacks or heart disease, back injuries, Parkinson's Disease, epilepsy, the use of a particular drug, etc., are all routinely permitted if these issues are involved in the case. These facts are considered neutral, but essential to state in order to ascertain a juror's experience and possible prejudice.

The consensus appears to be that although it is improper to tell a juror what the facts will be, it is permissible to outline the claims of the parties relative to a particular issue. Examples of this abound. All that is necessary is to be sure to explain to the juror that the rules do not permit you to state facts, but that each side has "claims." The "claims" are then stated. This approach arguably attempts to elicit from a prospective juror in advance what his or her decision will be based on the claims as stated, nevertheless the practice appears to be widespread and generally permitted.

In Duffy, 137 Conn. at 56-57 (1950) the court continued:

It is always improper to advise a juror what the law is, and question the prospective juror on his or her knowledge or ignorance concerning that question of law. However, the following is an example of a practice that is generally permitted and widespread:

The above is an example of questioning commonly used. The approach, whatever the question of law, is essentially the same.

In Duffy v. Carroll, 137 Conn. at 55 (1950) the following questions were posed:

The court held that the questions did not call for a statement by the prospective jurors of what they thought the law was. Rather, the questions were "designed to expose the jurors' ideas of what they in their own minds would expect by way of care from a young boy as contrasted with an adult." 137 Conn. at 57.

The court then stated (137 Conn. at 57):

Duffy is careful to point out that courts should be punctilious in restricting inquiry to only those questions pertinent and proper, and by no means to plant prejudicial matter in a juror's mind.

This broad principle has been applied to questions regarding sympathy, race, interracial marriage, abortion, and virtually all controversial issues about which people have strong feelings. On the civil side it would apply not only to the above issues, but also to strong feelings, and therefore possible prejudice, however remote, concerning the use of trucks on the highway, the use of motorcycles, bicycles, pedestrian use of the highway, the use of alcohol, drugs, etc. State v. Rogers, 197 Conn. 314, 318 (1985); State v. Fritz, 204 Conn. 156, 161 (1987); State v. Higgs, 143 Conn. 138, 142 (1956).

E. A party is entitled to inquire concerning sympathy.

In Lamb v. Burns, 202 Conn. 158 (1987) the court held that the trial court abused its discretion in restricting the defendant's voir dire examination of prospective jurors concerning their susceptibility to feelings of sympathy. Note the following language, 202 Conn. at 162:

The precise questions posed in this case were (202 Conn. at 161):

F. A party is entitled to inquire re racial prejudice.

State v. Higgs, 143 Conn. 138, 142 (1956). Here, a black man was accused of raping a white woman. His lawyer asked whether it would take less evidence to convict a black man or whether juror would give less credence to black man's testimony. These questions were excluded. The court held this to be error:

The court noted that even if most people in the state are not prejudiced against black people, it makes no difference because there is a substantial chance that one of those few who are prejudiced will appear in court as a venireman. See also: State v. Smith, 222 Conn. 1, 10-15, cert. denied 113 S.Ct. 383, 121 L.Ed2d 293 (1992); State v. Tucker, 226 Conn. 618, 633 ff (1993).

In State v. Tucker, 226 Conn. 616, 633 (1993) defense counsel questioned a prospective juror:

The court held regarding this question (226 Conn. at 634-635):

The court explained its refusal to reverse the ruling of the trial court refusing to excuse the juror in question for cause as follows (226 Conn. at 635 n. 19):

However, in the earlier decision in State v. Smith, 222 Conn. 1, 10-15, cert. denied 113 S.Ct. 383 (1992) the identical question, designed to disclose latent racism, was ruled discretionary and the refusal of the trial court to permit the question was held not to be error.

The trial court in State v. Smith sustained objection to defense asking potential jurors how they would feel if a relative expressed an intent to marry a black person. The state claimed this question was irrelevant. The Supreme Court found that it was relevant in that it might reveal latent racism but it was within the trial court's discretion to disallow since defendant had ample opportunity through other questions to explore the issue of racism.

There is an extensive discussion of purposeful racial discrimination in this decision, 222 Conn. at 10-15. Justice Berdon dissented, stating that the majority implicitly concluded that the trial court may substitute its judgment for that of counsel by disallowing a relevant voir dire question, as long as the court allows other questions pertaining to the same subject matter.

In State v. Skipper, 228 Conn. 610 (1994) defendant was convicted of eight counts of sexual assault in the second degree and risk of injury to a child as a result of a sexual relationship with a neighbor's minor daughter over a period of approximately seven years. The victim had become pregnant and had an abortion. On appeal the defendant contended that the trial court abused its discretion by permitting the state during the voir dire to question venirepersons regarding their ability to decide the case impartially despite evidence that the victim had had an abortion.

The court held (228 Conn. at 626):

In State v. Couture, 218 Conn. 309, 317-318 (1991) defendant claimed that the court improperly limited his voir dire examination of a prospective juror who had served on a prior jury in a criminal case that had returned a verdict. Specifically, the defendant claimed that he should have been permitted to ask the prospective juror whether the prior jury's verdict was guilty or not guilty. The trial court sustained the state's objection to this question.

The defendant argued on appeal that although the issue of whether the prospective juror's prior jury returned a verdict of guilty or not had nothing to do with the juror's fitness to serve, it had "everything to do with the possible predisposition of a juror in a criminal trial and, thus, with the intelligent exercise of a peremptory challenge." 218 Conn. at 319.

The Supreme Court held (218 Conn. at 319):

The rationale of the Supreme Court's ruling is obviously applicable to the case in which a juror has sat on a prior civil case and returned a verdict. Standing alone, the mere fact that a verdict was returned is not probative of the personal views of the individual juror. There must be some additional fact present to warrant this inquiry.

In State v. Fritz, 204 Conn. 156 (1987) the defendant physician was convicted of the crime of illegally prescribing a narcotic substance for a patient from 1978 to 1981. On appeal the judgment was set aside and a new trial ordered as a result of the trial court's error in refusing to allow defense counsel on voir dire to inquire of prospective jurors as to whether they believed that the testimony of a police officer or law enforcement officer was entitled to more weight or credibility than that of any other person.

The presumption of innocence and the state's burden of proof beyond a reasonable doubt are legal principles which are discussed in detail in the charge. Since it is presumed that an impartial juror would follow the trial court's instructions, no abuse of discretion was found in disallowing questions on these matters. 204 Conn. at 166-167.

The court agreed that its prior cases did not establish a per se error standard for the disallowance of questions related to law enforcement officials during the voir dire. It agreed with the state's claim that it must examine the matter in the context of the entire voir dire. In this case, the court refused to hold the ruling harmless. 204 Conn. at 162.

However, in State v. Hernandez, 204 Conn. 377, 381 (1987) it did the opposite, and held that refusing to permit defense counsel to inquire as to the credibility of the testimony of police officers and fire officials harmless, where the testimony of the officers and fire officials were not crucial to the state's case.

The court observed that because of the wide range of cases submitted to juries and the impossibility of establishing a set pattern of questions appropriate for the voir dire examination, the trial court is vested with broad discretion in determining the scope of counsel's inquiry. Because the credibility of the police officers and fire officials involved in the case was never called into question during the course of the trial, the court held that the testimony of the officers and officials was not so crucial as to warrant the finding of harmful prejudice from the trial court's erroneous restriction of the voir dire.

In Morgan v. St. Francis Hospital & Medical Center, 216 Conn. 621, 624 (1990) a medical malpractice action, three out of six jurors were employees of the defendant's insurer, Aetna. The Aetna adjuster on the case was also in attendance. Plaintiff moved that the court exclude the Aetna employees. The trial court refused to disqualify these jurors for cause. On appeal, plaintiff argued that as a matter of law employees of an insurance company should be excluded because of the close nexus between the defendants and their insurer.

The Supreme Court held that since evidence of insurance coverage is generally inadmissible, there is no reason to presume the veniremen employed by Aetna are biased. Plaintiff failed to raise his claim of bias from the realm of speculation to the realm of fact.

In Johnson v. New Britain General Hospital, 203 Conn. 570 (1987) a retired dentist, who was questioned after the plaintiff had run out of peremptory challenges, responded to the plaintiff's questions concerning his feelings towards malpractice litigation (203 Conn. at 572):

The juror, needless to say, was rehabilitated by the defendants to say that he could "put aside" his antagonism against malpractice cases and would be fair. The trial court indicated that it was having difficulty with the plaintiff's claim that the juror should be excused for cause. It stated (203 Conn. at 578 n. 10):

The plaintiff had established that until the juror heard the evidence, he would start off "just slightly tipped" in favor of the defendant. The Supreme Court, in affirming the trial court's refusal to excuse this juror, dismissed this aspect of the plaintiff's claim in a footnote (203 Conn. at 585, n. 15), holding that the trial court apparently was justified in ignoring this remark, as it was merely an isolated portion of the voir dire and not representative of all of the juror's testimony.

As a practical matter, had the trial court excused the juror there could not possibly have been a reviewable issue for an appeal for two reasons. First, the right on the voir dire for issues not involving race and gender is to exclude, not to include, and it is questionable whether a defendant would have had standing to raise the issue had the juror been excused. Second, there is no way a defendant can demonstrate prejudice on appeal from the trial court's exclusion of a juror who did not participate in the decision of the case.

Bleau v. Ward, 221 Conn. 331, 340-1 (1992).

Plaintiff appealed from a judgment confirming a jury verdict awarding him $150,000 in damages for personal injuries sustained in a motor vehicle accident.

The Supreme Court held that specific questions posed to prospective jurors were improper as implanting the notion that an exceptionally high award of damages would be warranted.

The trial court sustained defendants' objections to the following questions:

Defendants claimed the plaintiff was "prepping" the jury for a large verdict.

The Supreme Court held that objections to the first and third questions were correctly sustained. They carry the implication that the reason for the question is that the case to be heard involves injuries justifying an award that some people would regard as too high. "A court would not abuse its discretion by excluding this subtle kind of brainwashing." 221 Conn. at 341.

The second question was held to be neutral. A trial court, however, was justified in excluding it when it came in the company of the other two questions. If asked alone, it was within the trial court's discretion to permit. Id.

Dissenting, Justice Berdon stated that voir dire questions were proper and routinely asked. He stated (221 Conn. at 334):

A standard voir dire on this issue in use for over 30 years, is as follows:

SAMPLE VOIR DIRE QUESTIONS ON DAMAGES

In Girard v. Grosvenordale Co., 82 Conn. 271, 279-280 (1909) plaintiff's counsel, before the jury was impaneled, told court that defendant was insured and insurance company was real party in interest and claimed right to inquire whether any juror was shareholder, agent, officer or employee of the company as affecting juror's qualification. Defendant's counsel admitted fact of insurance, but objected to the questions. Trial court permitted the questions. The Supreme Court held the ruling a permissible exercise of discretion. The court stated that counsel can inquire into insurance, provided fact of insurance is brought to the attention of the court before the voir dire in absence of jury, and questioning is done for genuine purpose of determining disqualification by interest. It is within trial court's discretion if it is reasonable that shareholders or employees will be among jury panel. In this case, the court remarked that a claim agent or adjuster might be on panel.

See, Lowell v. Daly, 148 Conn. 266, 269 (1961), where plaintiff's attorney asked jurors whether they owned any stock in insurance company or were employed by such a company. Court merely observed this, did not rule on it, and cited Girard.

In Robinson v. Faulkner, 163 Conn. 365, 374-375 (1972), after a conference in chambers, the trial court ruled that a prospective juror could not be asked whether he or she had any "interest or participation or connection with casualty companies" or experience in the same for negotiation of settlements.

The Supreme Court held that the ruling was within the discretion of the trial court. The trial judge, in order to preclude possible prejudice to either side, took the position that the questions could be asked concerning a juror's interest if it appeared that the juror or his spouse was employed by an insurance company, not otherwise. The Supreme Court noted that its rulings in Girard and Lowell were justified because the questions "were addressed to financial and pecuniary interests of the juror in the insurance company and in the result of the pending action." 163 Conn. at 375. The trial court must be satisfied that the interrogation is directed at discovering more than simply an incidental contact with the company, its adjusters or agents. In this area, the court must strike a balance between the plaintiff's interest in having an impartial panel to hear the case and the defendant's need to keep insurance from distracting the jury. 165 Conn. at 375. See: Wrinn v. State, 35 Conn. App. 464, 473-474 (1994).