Allegheny County Jury Selection Process Called Into Question
The Pennsylvania Superior Court recently issued a decision that is of great importance to those attorneys practicing in Allegheny County, Pennsylvania. Specifically, the court refused to apply the “palpable-error” deference standard announced in McHugh v. Procter & Gamble, 776 A.2d 266 (Pa. Super. 2001) to the jury selection process in Allegheny County. In the case of Triggs v. Children’s Hospital of Pittsburgh, 2018 PA Super 129 (Pa. Super. 2018), the court determined that Allegheny County Civil Division’s jury selection process deprived the Triggs’ right to a fair trial.
The Civil Division of the Court of Common Pleas of Allegheny County does not assign a trial judge to preside over jury selection. Instead, the “Calendar Control Judge” delegates that duty to a court clerk in the Jury Assignment Room. Potential jurors meet individually with the clerk and the parties’ attorneys. The clerk asks a series of standardized questions, and then the lawyers may pose five additional inquires. The clerk permits brief follow-up questions in an effort to fully appreciate the jurors’ replies. If an attorney wishes to challenge a juror for cause, the clerk notes the challenge, and, after interviewing all potential jurors, the clerk and attorneys return to the Calendar Control Judge’s courtroom. There, the judge, reading the transcript of what occurred just moments ago, and only a few yards away, rules on the challenges for cause. Allegheny County judges in the civil division do not view the demeanor of prospective jurors, unless an attorney asks for the juror to appear before the judge in chambers to recreate the initial voir dire.
During the jury selection process, the Triggs moved to strike three potential jurors for cause believing that they exhibited such bias and prejudice that they could not be fair and impartial. A transcript was made of the jury selection process; the Calendar Control Judge reviewed the transcript and denied the Triggs’ request, thereby forcing the Triggs to exhaust three of their four pre-emptory challenges during jury selection. The case went to trial and resulted in a verdict for the defense. The Triggs appealed claiming that Allegheny County Civil Division’s jury selection process deprived the them of their right to a fair trial.
On appeal, the Triggs attacked the trial court’s voir dire process on various grounds. First, they argued that the judge erred by not striking for cause the three “potential jurors" who exhibited such bias and prejudice that they could not have been fair.
The hospital, quoting McHugh, countered, “[w]hen a juror demonstrates a likelihood of prejudice by conduct or answers to questions, much depends on the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in the case of palpable error.”
The Supreme Court of Pennsylvania, in adopting McHugh, recently explained:
We defer to the trial judge because it is he or she that observes the juror’s conduct and hears the juror’s answers. The juror appears before the trial judge, who sees him and hears what is said; and is able to form his opinion as much from the proposed juror's conduct as from the words which he utters, printed in the record. Hesitation, doubt, and nervousness indicating an unsettled frame of mind, with other matters, within the judge's view and hearing, but which it is impossible to place in the record, must be considered. As it is not possible to bring these matters to our attention, the trial judge's view should be given great weight in determining the matters before him.
Shinal v. Toms, 162 A.3d 429, 443-442 (Pa. 2017). Thus, the High Court placed great significance on the trial judge’s personal observation of the prospective jurors.
In Triggs, the court determined that a judge personally witnessing the original voir dire is essential, because it justifies the appellate court’s faith, and a losing party’s faith in the trial court’s rulings on challenges for cause. In this case. The court found that the trial judge personally observed nothing; therefore, the count found no reason to extend the McHugh deference standard in this situation, where only the attorneys and the clerk witnessed the physical and verbal cues that the challenged jurors exhibited. The court explained that the trial judge acquired none of the wisdom or insight that he could have from noting a jurors’ furtive glance, a tremor of voice, a delayed reply, a change in posture, or myriads of other body language. Thus, according to the court, the McHugh deference standard did not apply.
Nonetheless, the hospital argued that the Triggs’ failure to request a recreation of the initial questioning in this case constituted a waiver of this issue. The Triggs disagreed arguing that the time to assess the demeanor had passed that it was the prospective jurors “first impression” was what mattered. The court disagreed with the hospital regarding the re-questioning of the prospective jurors reasoning that they could never reproduce the authentic reactions that they displayed when the questions were originally asked. Additionally, the court believed that if the 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.”
Finally, the court rejected the Hospital attempts to excuse the judge’s absence by relying on Rule of Civil Procedure 220.3(c), which provides: “The parties or their attorneys may conduct the examination of the prospective jurors unless the court itself conducts the examination or otherwise directs that the examination be conducted by a court employee. Any dispute shall be resolved by the court.” Again, the court determined that by not contemporaneously observing the jurors’ responses, when ruling on challenges for cause, the trial judge deprived himself of any greater perception of the jurors’ partiality than an appellate court can discern by reviewing the same, cold record. Thus, McHugh’s rationale for reversing only in the face of palpable error does not apply. Thus, the court held that the McHugh “palpable-error” deference standard shall be limited to instances where a trial judge has personally observed the original voir dire.
Instead, the court applied a de novo scope of review, and in doing so found the first prospective juror to be biased in favor of physicians because her sister and brother-in-law were both doctors, and if “in a close call” she would tend to favor the medical profession. Citing to Shinal, the court reaffirmed that even “the slightest ground of prejudice is sufficient” to disqualify a potential juror.
The court in citing to Commonwealth v. Johnson, 445 A.2d 509, 514 (Pa. Super. 1982) determined that the error in not striking the biased juror for cause was not harmless as it required the Triggs to use a preemptory challenge to have the biased juror removed. Accordingly, the court reversed the order denying a new trial and vacating the judgment entered upon the verdict, and remanded the matter for a new jury selection and trial.
In today's post, Ty Smith explains a recent decision made by the Pennsylvania Superior Court which had refused to apply the 'palpable error' deference standard which had previously been announced in McHugh v. Procter & Gamble to the jury selection process in Allegheny County.