by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
In 2006 and 2007, the Administrative Office of the Courts issued directives addressing jury voir dires. The directives require, among other things, that trial judges ask jurors at least three open-ended questions that are designed to elicit a narrative response to which "appropriate follow up questions [can] be asked." These questions must be "posed verbally to each juror to elicit a verbal response." The purpose of this requirement is to "ensure that jurors verbalize their answers so the court, attorneys and litigants can better assess the jurors' attitudes and ascertain any bias or prejudice, not evident from a yes or no response, that might interfere with the ability of that juror to be impartial." The importance of the Administrative Office's directives was highlighted in two recent decision from the Appellate Division, both of which overturned verdicts rendered by jurors who were not asked at least three open-ended questions during voir dire.
In Heredia v. Piccininni, plaintiff sued after being injured in an automobile accident. Before trial, defendant stipulated liability, thus the only issue for the jury was damages. In advance of jury selection, Plaintiff submitted the following open-ended questions to be asked during voir dire:
- What are your feelings regarding the proposition that accidents resulting in serious damage to a vehicle may result in no bodily injuries and accidents resulting in little damage to a vehicle may result in serious bodily injuries?
- Describe by way of an example an experience in your life that illustrates your ability to be fair and open-minded in this case.
- Who are the two people that you least admire and why?
- What would you do about the homeless situation?
- What would you do about those without medical insurance?
The court did not include any of plaintiff's proposed questions in the list of questions used during voir dire. Instead, the trial judge asked each juror "multiple biographical questions required by the [Administrative Office]," including how they received their news, what their favorite television shows were, what bumper stickers they had on their cars, and how they spent their time. None of these were open-ended questions. Plaintiff's counsel used two of her six peremptory challenges during jury selection and, at the end of the process, advised the court that the jury was satisfactory.
After trial, the jury returned a verdict of no cause on plaintiff's non-economic losses (e.g., pain and suffering damages) but awarded plaintiff her economic damages, representing the full value of her outstanding medical bills. Plaintiff appealed, arguing, among other things, that the trial judge failed to ask any open-ended questions during voir dire.
The Appellate Division held that it was reversible error for the trial court not to have asked any open-ended questions to potential jurors. While the trial judge asked "what he considered open-ended questions," which he defined as "questions that call for something other than an [sic] yes or no response" the Appellate Division concluded that these were simply the required "biographical or omnibus questions." While they might have "offer[ed] some insight into the perspective of prospective jurors," they did not satisfy the mandate to ask at least three open-ended questions. The Appellate Division emphasized that the trial judge did not have to accept plaintiff's proposed open-ended questions, but it was an abuse of his discretion to not ask any open-ended questions.
The Appellate Division then turned to whether the trial judge's failure to ask any open-ended questions warranted reversal of the judgment. To do so, it applied the "harmless error" test, which asks whether the judge's failure "was of such a nature as to have been clearly capable of producing an unjust result." Without much explanation, the Appellate Division held that it could not "conclude the voir dire was sufficiently comprehensive to ensure an impartial jury was ultimately empaneled," therefore "the omission of required open-ended questions was not harmless."
The Appellate Division arrived at the same result in Karpuzi v. Gallo, a case with similar facts. Karpuzi also involved a lawsuit over a car accident and, like Heredia, defendants stipulated on liability. Prior to jury selection, plaintiff requested that the trial judge ask potential jurors to "describe what they thought about when they heard the terms 'permanent injury' or 'permanency' or when they heard or read about 'earnings capacity' or 'future earning capacity or income earning capacity.'" Plaintiff also requested that the trial judge ask two of the open-ended questions contained in the model voir dire questions promulgated by the Administrative Office, one about whether the juror thought society was too litigious and one about whether the juror thought he or she would make a good juror.
The trial judge refused to ask the two questions plaintiff proposed because he believed they were irrelevant. The trial judge also refused to ask the two open-ended questions from the model voir dire questions, apparently concluding that it would be waste of time because "[e]verybody's going to say they can be a good juror." Like plaintiff in Heredia, plaintiff in Karpuzi never objected during the voir dire, even though the trial judge did not ask any open-ended questions, and informed the court at the end of the process that the jury was acceptable. After trial, the jury returned a verdict in favor of defendants and dismissed plaintiff's complaint.
Plaintiff appealed, arguing, among other things, that the judgment must be vacated because the trial judge failed to ask potential jurors any open-ended questions. The Appellate Division agreed and vacated the judgment. The Appellate Division held that the Administrative Office's directive is mandatory and binding on all courts and that the trial judge violated it by failing to ask any open-ended questions. While the trial judge "believed the information to be elicited by [the open-ended questions] was covered by other questions, and [ ] did not believe that jurors would ever answer a question about their ability to be fair by admitting that he or she could not," this belief did not "provide a justification for failing to ask at least three open-ended questions." Again, the Appellate Division held that a trial court does not have to adopt a plaintiff's proposed open-ended questions, but it must ask three open-ended questions of potential jurors.
As in Heredia, the Appellate Division then turned to whether the trial judge's failure to ask any open-ended questions warranted reversal of the judgment. Applying the "harmless error" test, the Appellate Division concluded that it did. The Appellate Division held that it could not "conclude from [its] review of the jury voir dire that it was sufficiently comprehensive to ensure that an impartial jury was selected." While the questions the trial court asked might have offered "some insight into the perspective of prospective jurors," they did not "satisfy the mandate to ask open-ended questions."
Pete's Take 