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Pennsylvania Superior Court: No Deference Where Trial Judge Fails to Observe Voir Dire

By: Pat Casey

A common practice in many state civil courtrooms throughout Pennsylvania, certainly in its two busiest courts – the Philadelphia and Allegheny Courts of Common Pleas – has recently been found to be lacking by the Superior Court: jury selection outside the presence of a judge. When civil litigators select a jury, they use a process in which the attorneys and the court work together to search for potential hardship, bias and prejudice among the prospective jurors through a series of written and oral questions, known as voir dire (meaning roughly “to tell the truth”). Commonly in civil litigation, the trial judge does directly not participate in this process. Instead, the trial judge will delegate one of his or her staff to handle this sometimes time-consuming endeavor of narrowing down a potential juror pool of hundreds to the 8 or 12 jurors who will ultimately hear the case, along with 1 or 2 alternate jurors.

Trial lawyers participating in the voir dire process are typically given a limited number of peremptory strikes, sometimes as few as 3, to use when the court does not remove an unsuitable juror for cause on its own or by agreement of the parties. These peremptory strikes are invaluable to each attorney and are used sparingly throughout jury selection because one never knows when or how many biased jurors will slip through the court’s net.

Many potential jurors simply do not want to go through the hassle of serving and missing work or family obligations for the better of part of a week or longer and will present every excuse they can think of to avoid selection. This is where the court will typically step in and push the jurors to admit that they can serve, unless a particularly good excuse is offered.

Sometimes these excuses take the form of expressions of bias or prejudice by the prospective juror that, while not exactly heartfelt, reflect a heartfelt desire not to be selected. Court staff are accustomed to hearing these excuses and frequently do a good job of ferreting out those jurors who aren’t really biased or prejudiced through a process known as “rehabilitation” during which the juror is challenged to explain or justify their stated beliefs under direct questioning while the court staff and the attorneys watch and evaluate the juror’s statements, mannerisms and overall demeanor. The attorneys also get a chance to question the prospective jurors directly, often taking turns with each potential juror or alternating potential jurors. After each potential juror is questioned, the court staff will state that a potential juror will be selected unless a party uses one of their precious peremptory strikes.

But what happens when the court’s staff is letting too many “bad” jurors through and forcing the attorneys, or most troublingly, one party’s attorney, to quickly use up their peremptory strikes? Counsel will note their objections and seek a ruling from the trial judge. The trial judge, who has not witnessed the voir dire process, will rule on whether the challenged jurors are fit to serve. This ruling is final for purposes of the coming trial, but is appealable following the trial.

Under the precedent of McHugh v. Procter & Gamble, 776 A.2dd 266 (Pa. Super. 2001), however, the trial court is to be afforded great deference in determining whether a juror should serve. Indeed, the Superior Court stated that it would only overrule a trial judge if it found “palpable error.” McHugh, 776 A.2d at 270. This leaves the aggrieved party’s attorney facing a nearly insurmountable burden on appeal because the appellate court will have before it a very limited record of what occurred at voir dire and will defer to the trial court’s judgment on matters such as the witnesses manner, demeanor and credibility that cannot be recorded in the record. Is this deference justified when the trial judge did not witness the challenged jurors answers during voir dire? Recently, the Superior Court addressed this very question and the answer was “no.”

In the recent decision of Trigg v. Children’s Hospital of Pittsburgh of UPMC, No. 1041 WDA 2017, 2018 Pa. Super 129 (May 14, 2018), a Superior Court panel refused to apply McHugh’s “palpable error” deference standard to the trial court’s ruling. In Trigg, the plaintiff’s trial counsel was forced to use 3 out of 4 peremptory strikes within the first 37 potential jurors questioned because the Calendar Control Judge’s clerk, who was running the jury selection on behalf of the court, had refused to strike these jurors for cause despite their apparent bias and prejudice that made it impossible for them to fairly hear the case. This left plaintiff with only 1 peremptory strike for the remainder of jury selection, which strike was used. When the challenges to these 3 jurors were presented to a judge, who had not witnessed the challenged jurors’ answers to the courts and counsels’ questions, the judge sided with the clerk and refused to remove those jurors for cause. The trial went forward and resulted in a complete defense verdict.

On appeal, the Superior Court panel in Trigg explained its refusal to defer to the trial court by noting that its ruling in McHugh was founded on the assumption that the trial judge actually witnessed voir dire. This assumption was recently noted by the Pennsylvania Supreme Court when it adopted the holding of McHugh: “[w]e defer to the trial judge because it is he or she that observes the juror’s conduct and hears the juror’s answers.” Shinal v. Toms, 162 A.3d 429, 443 (Pa. 2017). In Trigg, by contrast, the Superior Court noted that “[h]ere, however, the trial judge personally observed nothing; therefore, we see 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.” Trigg, 2018 Super at *3. The trial verdict in Trigg was vacated and the case was remanded for a new jury selection and trial.

It remains to be seen what effect, if any, the Trigg ruling will have on the practice of civil trial courts conducting jury selection throughout the Commonwealth, but it is a development worth watching and worth bearing in mind for all Pennsylvania civil litigators who frequently find themselves selecting a jury outside the presence of the trial judge.

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