Opinion
No. 02-108923
July 7, 2005
MEMORANDUM RE DEFENDANT'S MOTION TO RECONSIDER RULING LIMITING VOIR DIRE QUESTIONING DATED JUNE 30, 2005.
The defendant on June 30, 2005 filed a motion asking the court to reconsider its ruling limiting the questioning allowed during the individual voir dire on the subjects of presumption of innocence, the state's burden of proof, proof beyond a reasonable doubt and the defendant's right not to testify. The court prior to start of jury selection informed counsel that it would be following the limitations set forth in State v. Dahlgren, 200 Conn. 586, 512 A.2d 906 (1985), concerning questions dealing with fore mentioned questions of law. The court after review of the motion filed by the defendant denies the motion for the following reasons. The court finds that the limitations placed on individual voir dire by the Connecticut supreme court in State v. Dahlgren, 200 Conn. 586, 512 A.2d 906 (1985), is the controlling law in Connecticut. Further the court in its preliminary instructions to the jury panel reviews these areas of the law, the presumption of innocence, proof beyond a reasonable doubt, the burden of proof in a criminal case and the defendant's right not to testify. The court then questions the panel on any concerns or problems with these areas of the law, along with questions dealing with sympathy or compassion for one party or the other, the credibility of police officers and other expert witness as well as instruction concerning the court's charge and the juror's obligation to follow the law even if they may disagree with the instruction. Any venire person who answers in the affirmative is then questioned by the court at the beginning of the individual voir dire process.
The court finds this process satisfies the requirements of Article First subsections 8 and 19 of the Connecticut Constitution. Further this procedure was approved by our Supreme court in State v. Faust, 237 Conn. 454 (1996). For the purpose of appellate review, if necessary, the court attaches a copy of its questions and the preliminary jury instructions used by the court from the Electronic Bench Book (revised to March 2005).
Brunetti, J.
QUESTIONS FOR JURY PANEL AS A WHOLE
A. AFTER INTRODUCTION BY ATTORNEYS ASK?
1. DOES ANYONE HAVE A PROBLEM WITH THE TIME FRAME OF THE CASE? BY THAT I MEAN DR'S APPTS, BUSINESS TRIPS, SCHEDULED VACATIONS, DAYCARE OR HEALTH PROBLEMS?
2. DOES ANYONE KNOW ANYONE MENTIONED BY EITHER ATTORNEY AS A POTENTIAL WITNESS OR ANY ONE WHO WORKS WITH THE ATTORNEY?
JUST GIVE US YOUR NAME, NOT WHO YOU KNOW OR WHAT YOU KNOW GO ROW BY ROW AND MARK DOWN THE NAMES.
B. AFTER YOU HAVE READ THE PRELIMINARY INSTRUCTIONS ASK?
1. DOES ANYONE HAVE A PROBLEM WITH THE PRESUMPTION OF INNOCENCE. THAT IS THE DEFENDANT AS HE SITS HERE TODAY IS PRESUMED INNOCENT?
2. DOES ANYONE BELIEVE BY THE MERE FACT THE DEFENDANT HAS BEEN ARRESTED HE MUST HAVE DONE SOMETHING WRONG.
3. DOES ANYONE BELIEVE THEY COULD NOT FOLLOW THE COURT'S INSTRUCTION WHAT CONSTITUTES PROOF BEYOND A REASONABLE DOUBT.
4. DOES ANYONE HAVE ANY PROBLEM OR CONCERN WITH THE INSTRUCTION THE DEFENDANT DOES NOT HAVE TO TESTIFY AND THE JURY CANNOT HOLD IT AGAINST HIM/HER IF HE/SHE CHOOSES NOT TO TESTIFY.
5. DOES ANYONE HAVE A PROBLEM OR CONCERN WITH THE INSTRUCTION CONCERNING POLICE OFFICERS.
6. DOES ANYONE BELIEVE THEY COULD NOT FOLLOW THE INSTRUCTION ON SYMPATHY OR COMPASSION.
NOW AT THE END OF THE CASE I WILL INSTRUCT YOU ON THE LAW. THIS IS CALLED THE COURT'S CHARGE. IF AT THAT TIME YOU DISAGREE WITH MY INSTRUCTION, FOR WHATEVER REASON, OR YOU THOUGHT THE LAW WAS SOMETHING ELSE, SHOULD BE SOMETHING ELSE, THIS MAY COME FROM TV, THE MOVIES OR WHATEVER I WILL INSTRUCT YOU THAT YOU MUST PUT ASIDE YOUR PERSONAL OPINIONS AND JUST FOLLOW MY INSTRUCTIONS, DOES ANYONE HAVE A PROBLEM WITH THAT RULE?
AFTER EACH OF THE ABOVE QUESTIONS GO ROW BY ROW AND GET THE NAMES OF THE PEOPLE WHO HAVE CONCERNS.
EXPLAIN VOIR DIRE SELECTION PROCESS.
VOIR DIRE NOT MEAN TO PRY INTO YOUR PERSONAL LIFE IF ANYONE FEELS A QUESTION ASKED BY EITHER ATTY. IS TOO PERSONAL PLEASE TELL ME.
SEND ENTIRE PANEL BACK TO JURY ROOM, CAUTION THEM TO NOT DISCUSS THE CASE OR THEIR CONCERNS WITH EACH OTHER.
WHEN A PERSON WHO ANSWERED ONE OF THE QUESTIONS IN THE AFFIRMATIVE COMES OUT THE COURT SHOULD FIRST ASK ABOUT THE PROBLEM.
INDIVIDUAL VOIR DIRE
1. ATTYS ALTERNATE ON WHO GOES FIRST START WITH THE STATE.
2. ATTYS MAY AGREE BEFOREHAND THAT CERTAIN JURORS MAY BE EXCUSED IE; SOMEONE'S BROTHER NEPHEW OR COUSIN ON THE PANEL.
3. AFTER EACH JUROR IS QUESTIONED ASK THEM TO LEAVE THE ROOM AND ATTORNEYS WILL ACCEPT, USE PEREMPTORY CHALLENGE OR CHALLENGE BY CAUSE, ATTY WHO QUESTIONED FIRST HAS TO DECIDE FIRST.
4. BRING JUROR BACK IN AND IF SELECTED INSTRUCT THEM WHEN TO RETURN, AND INSTRUCT THEM NOT TO DISCUSS THE CASE WITH ANYONE, IF ASKED SIMPLY SAY I HAVE BEEN SELECTED FOR A CRIMINAL CASE, INSTRUCT THEM NOT TO READ ANYTHING IN NEWSPAPER, RADIO OR TV, PROBABLY WON'T BE BUT JUST IN CASE WE WANT YOU TO DECIDE THE CASE SIMPLY ON THE EVIDENCE YOU HEAR IN THE COURTROOM.
5. IF JUROR NOT SELECTED SIMPLY THANK THEM AND SEND DOWN TO JURY CLERK.
PEREMPTORY CHALLENGES
MISDEMEANORS CHARGES THREE FOR PANEL AND ONE FOR ALTERNATE.
FELONY SIX FOR JURY TWO FOR ALTERNATES, EACH SIDE GETS THE SAME,
COUNSEL WILL USUALLY AGREE THAT ALL THE CHALLENGES CAN BE USED FOR THE PANEL.
PICK A JURY OF SIX AND TWO ALTERNATES.
II. PRELIMINARY PROCEEDINGS BEFORE THE PANEL A. ROLL CALL AND ADMINISTRATION OF THE VOIR DIRE OATH
Practice Book § 42-11; see Oaths and Affirmations.
B. INTRODUCTORY REMARKS BY THE COURT
We are about to start the trial of a criminal case. I know you all have received preliminary instructions and will bear those in mind and those of you who are selected as jurors, of course, will receive additional instructions at the conclusion of the case.
The accused in this trial is _______________. Please stand and face the jury panel.
The information charges the accused with the offense of _______________ on _______________ in the town of _______________
At an earlier date the accused pleaded not guilty and elected to be tried to a jury.
The state is represented by Mr./Ms. _______________ who will identify [himself/herself] and [his/her] associates to you in just a moment.
The accused is represented by Mr./Ms. _______________ who will introduce [himself/herself] and [his/her] associates in just a moment.
A jury of [12/6] and 2 alternates will be selected in this case. The jury will be selected by number, seated in the witness chair and asked questions by counsel individually.
C. INTRODUCTION OF THE CASE BY COUNSEL
Practice Book § 42-11
Opening remarks by state's attorney and defense counsel.
D. JURORS WITH RESERVATIONS
Have jurors with reservations about sitting on the case simply give their names only while in the presence of the entire panel.
E. EXPLAIN THE BASIC PRINCIPLES OF LAW THAT APPLY IN ALL CRIMINAL CASES
Before excusing you to the deliberating room, I'd like to go over a few basic principles of law that apply in all criminal cases beginning, of course, with the presumption of innocence.
As the defendant sits here in court [he/she] is presumed innocent and remains cloaked with that presumption throughout the duration of the trial unless and until you find that [he/she] is guilty beyond a reasonable doubt. That's the presumption of innocence and it's particularly significant in two respects: First, it means the fact that the defendant has been arrested is not evidence in the case. It can't be held against [him/her]. Though it's natural to come into the courtroom, particularly for the first time, and assume that since the defendant is arrested [he/she] must have done something wrong, that sort of thinking is not consistent with the presumption of innocence. So, to sit as a juror on a criminal trial you must be willing to put aside such thoughts and judge this case just on the evidence you hear in the courtroom. Similarly, the fact that the defendant is charged with very serious charge(s) is not evidence in the case. The arrest and the charge(s) are simply the formal way of bringing the defendant to court for trial, in this case, before a jury of [his/her] peers.
Now since the defendant is presumed innocent, it naturally follows that it is not [his/her] burden to prove [he/she] is innocent; [he/she] is already presumed innocent. It is the state's burden to prove [him/her] guilty, and that burden is proof beyond a reasonable doubt. Now, I'm not going to get into a long explanation as to what constitutes proof beyond a reasonable doubt, because if you're chosen to sit you'll hear a detailed instruction at the conclusion of the case. It suffices to say, however, for the purpose of this proceedings, that it is more than being probably guilty. In other words, if you sat through the entire case and said to yourself, `you know, on the basis of that evidence I think [he/she] probably did it, [he/she] is probably guilty,' that's not enough. The burden in this country is proof beyond a reasonable doubt. On the other hand, it's not proof to a mathematical certainty, or proof beyond all doubt, or beyond a shadow of a doubt, because nothing is provable to that degree short of death and taxes. So the burden is a human one; a burden that, presumably, is capable of being carried by a human prosecutor, proof beyond a reasonable doubt.
Now since the defendant is presumed innocent and the burden is on the state to prove him guilty, it naturally follows that the defendant has no obligation to put on any evidence at all. [He/She] does not have to put on any evidence, and [he/she] does not have to take the stand; and, if [he/she] chooses not to take the stand and/or not to put on evidence you're not to hold it against [him/her] because those are [his/her] rights. Of course, that may mean that you might only hear the state's version of the evidence. I know you come into court thinking that you'll hear both sides of the story and then you'll make your decision; but, you might only hear one side, the state's side. If that were to happen you simply evaluate the state's evidence and see whether the evidence has reached that standard of proof beyond a reasonable doubt.
Now in this case, as in just about every criminal case, police officers will be taking the stand. You evaluate the testimony of a police officer just as you would anyone else. In other words, you don't give special weight to the testimony of a police officer just because [he/she] is a police officer. You may believe the officer, or not believe the officer, but not simply because of the job [he/she] was hired to do. That's a rule that applies not just to the police, but to any person with a title or status who comes into the courtroom to testify. No matter who it is, you apply the same standards in judging [his/her] credibility. It doesn't mean everyone is equally credible, it simply means you apply the same standards in judging who is credible and who is not.
Finally, in sitting on a case such as this one, there may come a point where you have feelings of sympathy or compassion for one side or another, one party or another. That is certainly natural and can't be ordered away. However, in deliberating this case, and in coming to an ultimate verdict, you must be willing to put aside feelings of sympathy and compassion and to judge this case just on the evidence you hear in the courtroom.
With those principles in mind I'm going to excuse you now to the jury room and we will begin jury selection.
F. QUESTIONING THE PANEL
Court may pose questions to entire venire panels prior to individual voir dire and may dismiss for cause any panel member whose answers to the court's inquiries reveal bias. State v. Faust, 237 Conn. 454, 462 (1996).
G. EXCUSE PANEL TO JURY ROOM
Before beginning individual voir dire, deal with those venirepersons with reservations in summary fashion outside the presence of other panel members. State v. Faust, supra, 237 Conn. 463.