Tuesday, June 7, 2011

Over the years many trial judges in New York have been imposed increasingly restrictive time limits on the questioning prospective jurors. And appellate courts have repeatedly rejected challenges to these arbitrarily time limits (see People v Jean, 75 NY2d 744 [trial court did not abuse its discretion in limiting counsel questioning to 15 minutes in first two rounds and 10 minutes in third round of voir dire]; People v Davis, 166 AD2d 453 [2d Dept], lv denied 76 NY2d 985 [1990] [15 minute restriction in first round followed by 10 minutes in second and third rounds not an abuse of discretion]; People v Erickson, 156 AD2d 760 [3d Dept 1989], lv denied 75 NY2d 966 [1990] [10 minute restriction in each round was not an abuse of discretion]).http://www.blogger.com/img/blank.gif

So it was not surprising that a judge presiding over a high profile robbery and weapons trial instructed the attorneys that they would be given only five minutes to question each panel of prospective jurors. Nor is it shocking that even when numerous venireman gave answers raising concerns as to their ability to be fair and impartial and counsel was questioning one of these prospective jurors, the court interrupted counsel to warn him that only one minute remained for questioning. Thus no questioning of the others was possible.

Perhaps what is surprising is that on appeal the Court of Appeals (People v Steward, 2011 NY Slip Op 04716 [6/7/11]) held that on these facts the trial court abused its discretion in continuing to enforce the five-minute limitation on counsel questioning after counsel's timely objection explaining why the time period was insufficient.

The Court explained, however, that not only is a five minute per pass rule not automatically invalid (how about two minutes per pass?) but even the error in this case
"standing alone, does not warrant reversal. A trial court's abuse of discretion in limiting the scope of counsel questioning will not warrant reversal unless defendant establishes that he suffered prejudice (see Jean, 75 NY2d at 745)."

In deciding that the requisite prejudice was established the Court wrote

Defendant contends that he suffered prejudice because critical issues were revealed during jury selection involving a large number of prospective jurors and, as a result of the five-minute time restriction, his attorney was unable to query the various venire members that had responded to the court's inquiries in a problematic or provocative manner. And he suggests that some of these individuals did, in fact, serve on the jury that convicted him.

Given the lack of clarity in the record concerning whether certain prospective jurors were discharged or retained, we cannot say that defendant's claim of prejudice is refuted by the record. This is not a case where defendant has done nothing other than identify one or two venire persons who made questionable remarks but were not examined by counsel due to a time constraint. In the third round of voir dire alone, more than a dozen prospective jurors seem to have said something that invited additional inquiry in connection with their knowledge of the victim or status as a crime victim or witness — topics especially pertinent to this case. While none of these jurors made statements that, without further elaboration, would have justified their dismissal for cause, the purpose of follow-up questioning by the court or counsel is to explore hidden biases. During jury selection, attorneys pay close attention to juror responses in order to identify who should be challenged "for cause" and decide whether to exercise peremptory challenges. This process may be thwarted if an insufficient amount of time is permitted for questioning. And, here, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies.

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