A core mission of the Western Pennsylvania Trial Lawyers Association is to promote, improve and advance the right to a trial by jury. One of the most essential elements of a jury trial is a fair and impartial jury. This impartiality is protected through the voir dire process where potential jurors are vetted to discern actual bias or the appearance of partiality or bias.
Last year our Supreme Court, in the case of Shinal v. Toms, 162 A.2d 429 (Pa. 2017), noted that the discretion afforded to a trial judge in granting or denying challenges for cause was directly linked to the fact the trial judge hears what the potential juror says and directly observes the juror’s demeanor, hesitation, doubt and nervousness. The Shinal Court went on to hold that “because the law endeavors to hold the jury system free from any appearance of partiality, it is incumbent upon trial courts” to explore and remove any bias. The Supreme Court’s emphasis and reliance upon the trial court’s direct involvement in the voir dire process is consistent with the way voir dire is conducted in the majority of counties across our Commonwealth, and indeed across the country.
On May 14, 2018, our Superior court revisited the issue of challenges for cause during voir dire and in particular, the jury selection process utilized by the Allegheny County Civil Division. In Trigg v. Children’s Hospital of Pittsburgh of UPMC, the Superior Court reversed and remanded a medical malpractice case because Plaintiff’s counsel was forced to use three-fourths of his peremptory charges on jurors that exhibited bias during voir dire. The Trigg Court focused on the lack of judicial observation of the voir dire process in Allegheny County because it is conducted by a clerk and how this unfairly impacts the court’s ability to make a fair and informed ruling on whether a potential juror exhibited bias in his or her responses. Not only does the majority opinion emphasize how critical judicial oversight is on conducting fair voir dire, but the concurring opinion by Judge Bowes, which was joined by Judge Olson, urges Allegheny County to re-examine and revise its voir dire procedures to conform to Pennsylvania law.
The WPTLA Executive Board respectfully joins Judge Bowes’ plea for change in the voir dire procedure in Allegheny County. In its current form, the process does not comply with Shinal and Trigg makes it clear that without direct judicial oversight, cases will be reversed and remanded if appealed on this basis. Change is never swift or easy but in order for litigants to have faith in the fairness of our judicial system, change is required in Allegheny County. Voir dire should be conducted in the presence of a judge and lawyers should be given latitude to ask follow-up questions to explore and strike any actual or perceived bias.