The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) held in its May 14, 2018 decision that the medical malpractice plaintiff was entitled to a new trial because “[a] judge personally witnessing the original voir dire is essential, because it justifies our — and a losing party’s — faith in the trial court’s rulings on challenges for cause … [t]he knowledge gleaned from in-person observations is ‘impossible to place in the record, [but] must be considered’ … [a]n absentee judge misses the crucial instant when would-be jurors reveal their inmost selves by both words and actions.”
The Civil Jury Selection Process
The Calendar Control Judge delegates the duty to preside over jury selection in civil cases 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 to flesh-out 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.
In the medical malpractice case the Pennsylvania Appellate Court was deciding, the plaintiffs disputed the results of this system because the judge, lacking any firsthand perception of the jurors’ demeanor during the voir dire, ruled that all three of the jurors that the plaintiffs challenged were unbiased and impartial. The plaintiffs were then forced to exhaust three of four peremptory strikes to remove the challenged jurors. This left them with only one peremptory strike for the rest of the jury panel, which they used.
The Pennsylvania Appellate Court referred to a previous appellate case in which it held that when 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 reason the appellate court defers to the trial judge is “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.”
In the present case, the Pennsylvania Appellate Court stated that the trial judge personally observed nothing; therefore, there was no reason to extend the above deference standard in this situation, where only the attorneys and the clerk witnessed the physical and verbal cues that the challenged jurors exhibited. 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.
The Pennsylvania Appellate Court stated, “An absentee judge misses the crucial instant when would-be jurors reveal their inmost selves by both words and actions.” The Pennsylvania Appellate Court held: “By not contemporaneously observing the jurors’ responses, when ruling on challenges for cause, the trial judge in this case deprived himself of any greater perception of the jurors’ partiality than an appellate court can discern by reviewing the same, cold record. Thus, [the] rationale for reversing only in the face of palpable error does not apply here. We hold, therefore, that the  deference standard shall be limited to instances where a trial judge has personally observed the original voir dire. That did not occur in this case.”
The Pennsylvania Appellate Court further held that the trial court’s error was not harmless.
Source Trigg v. Childern’s Hospital of Pittsburgh of UPMC, 2018 PA Super 129.
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