Category Archives: Trial Courts

Is 5 minutes enough time for voir dire?

While trial courts have wide latitude in controlling the tempo and timing of voir dire, that discretion is not absolute.  In People v. Steward (Ct. App. 6/7/2011) (Graffeo, J.) (5-2), the Court of Appeals held that the trial court abused its discretion by only permitting five minutes of questioning per round of voir dire.

The case stemmed from a robbery of a well known DJ.  Prior to jury selection, the trial judge informed the parties that they would each be given five minutes per round of voir dire.  The Defendant objected to the time limit during the first round of jury selection but not during the subsequent rounds.

The relevant statute states, "Each party shall be afforded a fair opportunity to question the prospective jurors as to any unexplored matter affecting their qualifications, but the court shall not permit questioning that is repetitious or irrelevant, or questions as to a juror's knowledge of rules of law." (CPL § 270.15(c))  The court set forth a factors test to be applied in determining whether a particular time limit is reasonable:

It would be impossible to compile an exhaustive list of all the factors that might inform a trial court's determination of this issue. But, in most cases, relevant considerations would include: the number of jurors and alternate jurors to be selected and the number of peremptory challenges available to the parties; the number, nature and seriousness of the pending charges; any notoriety the case may have received in the media or local community; special considerations arising from the legal issues raised in the case, including anticipated defenses such as justification or a plea of not responsible by reason of mental disease or defect; any unique concerns emanating from the identity or characteristics of the defendant, the victim, the witnesses or counsel; and the extent to which the court will examine prospective jurors on relevant topics. Because voir dire is a fluid process and it is not always possible to anticipate the issues that may arise during examination of the venire, it is also incumbent on counsel to advise the court if any temporal limitation imposed relating to juror questioning is proving, in practice, to be unduly restrictive and prejudicial.

The five minutes imposed by the trial court in this case was shorter than the time limits previously upheld by the Court of Appeals.  Moreover, the Defendant was facing four serious Class B felony charges as well as other felonies.  The victim was a celebrity and many of the prospective jurors had heard of him.  The case also raised sensistive questions about self-help, as the victim had pursued his assailants after the robbery was completed.

The question of prejudice was made difficult by the record, which referred to each venireperson only as "prospective juror" and entire groups of prospective jurors were excused sua sponte.  "[H]ere, due to peculiarities in the record, it is impossible to contradict the contention that the problematic prospective jurors that counsel was unable to examine ultimately sat on the jury that convicted him of multiple class B violent felonies." 

The trial judge was Justice Ruth Pickholz.  (LC)

No duty of police to investigate defense

The police do not have an affirmative duty under Brady to investigate a self-defense claim.  In People v. Hayes (Ct. App. 5/10/2011) (Jones, J.) (6-1), the Defendant was accused of stabbing a fellow moviegoer who was talking throughout the film.  The Defendant argued that the People committed a Brady violation, because the police officers who secured the crime scene did not interview several individuals who claimed that the complainant was, in fact, the initial aggressor.  Morever, the Defendant complained that the trial court improperly limited his cross-examination of the police officer.  The Court of Appeals affirmed.

With respect to the Defendant's Brady claim, the court summarized the argument briefly, "Here, defendant claims that the police and the People committed a Brady violation by failing to interview, or at a minimum, acquire the contact information of the two individuals who made the statements overheard by Sergeant Fitzpatrick. While defendant's argument is couched in Brady terms, when distilled, he essentially seeks a rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant. However, this Court has declined to impose such an obligation."  The court distinguished the type of affirmative duty that the Defendant was arguing for from the duty to preserve existing evidence that had long been recognized as a corollary to Brady.  The court's ruling was unanimous on this point.

Regarding the Defendant's assertion that his ability to cross-examine the police was improvidently limited, the majority held that the trial court did not abuse its discretion because there was too great a risk that the jury would have considered the bystanders' comments for the truth of the matter asserted.  In addition, the statements had limited value because whether the complainant initially had the knife was not that probative.

Chief Judge Lippman dissented but only as to the second issue.  He argued that there was no evidence that the trial judge actually exercised discretion.  The Chief Judge viewed it as a purely legal error on the trial court's part.  (LC)

Defendant’s father wrongly excluded from courtroom

In People v. Martin (Ct. App. 5/10/2011) (Ciparick, J.), the Court of Appeals unanimously reversed the Defendant's conviction because his father was excluded from the courtroom for a portion of the voir dire.  Prior to jury selection, the trial court turned to the father and directed him to exit the courtroom and to have no contact with any potential jurors.  Defense counsel objected. 

The trial court offered two reasons for the exclusion: (1) every seat was needed for potential jurors; and (2) the Defendant's father might influence the venire.  The Court of Appeals found neither reason persuasive.  First, while a trial court may limit the number of spectators in order to accommodate a venire panel, it is error to exclude a single, specific person to do so.  Second, there was no specific evidence that the father was likely to influence potential jurors.  It was pure speculation on the court's part.  Moreover, the trial court did not consider alternatives to exclusion.

Lessons for trial courts:

  • Make a record of why you are excluding a person or group from the courtroom.  The record must be supported by specific facts, not conjecture.  (In reading this case, I wonder if there was something off-the-record that gave the trial court pause about the father.)
  • Specifically consider, on the record, alternatives to complete closure or exclusion.
  • If overcrowding is a concern, do not single out particular spectators.  Also, be sure to make a record of how big the courtroom is and how many seats are available. 


Court’s discretion to discharge a sleepy juror

Proper jury service requires that the juror remain awake and attentive during the trial.

In People v. Wells (Ct. App. 12/14/2010) (6-1), during voir dire, the trial court discharged a sworn juror as incapable to serve, based on information the juror neglected to disclose when the parties questioned him. After being sworn, the juror claimed that his occupation as a night shift worker might impair his ability to stay awake during the trial.  The defense objected to the discharge on the ground that the trial court could bar the juror from working nights until the conclusion of the trial.  The trial court declined to issue the order and excused the juror.

On appeal, the Defendant asserted that under CPL § 270.15 the trial court lacked the authority to discharge the juror.  The Court of Appeals held that this claim was not preserved for appellate review because the Defendant failed to raise an objection based on § 270.15 during trial.  However, the Court of Appeals indicated that it was not an abuse of discretion for the trial court to apply the authority imparted under § 270.15, to discharge a sworn juror as incapable, based on a prospective assessment of the juror’s ability to serve.

In dissent, Judge Lippman contrasted the authority imparted under CPL § 270.15 and CPL § 270.35 and argued that the Defendant's argument was properly preserved.  Judge Lippman noted that prior to empanelment the parties, not the court, control jury selection as guided by statute.  Section 270.15 controls the role of the trial judge prior to the commencement of the trial.  Judge Lippman pointed out that under § 270.15 a trial judge may not interfere with jury selection unless it is evident that a sworn juror is incapable of service.  Thus, Judge Lippman dissented from the majority’s approval of discharge based on prospective assessment of a juror’s ability to serve.  Section 270.35 is applicable after the jury is empanelled and imparts greater authority to the trial judge.  Judge Lippman argued that even under the expanded but inapplicable authority of § 270.35, a discharge without an indication of unavailability, bias, misconduct, or lack of qualification is not proper. (MM/LC)

Trial court’s duty when defendant moves to substitute counsel

The Court of Appeals held recently that a trial court is not necessarily required to inquire of a defendant, rather than his counsel, about a defendant's pro se motion to substitute counsel.  

In two consolidated appeals, People v. Porto (Ct. App. 12/21/2010) (Jones, J.) (6-1) and People v. Garcia (Ct. App. 12/21/2010) (7-0) (Jones, J.), the defendants made pro se motions to substitute counsel.  Porto submitted a preprinted form and circled three reasons for substitution: "[Defense counsel failed to]: (a) visit defendant at his place of confinement or have him produced to the Court for a consultation; (b) provide copies and inform defendant of any Motions filed, Responses and Court's decisions thereto; (c) forward me copies of any bill of particulars and or discovery in his/her possession."  Porto filed his motion approximately 10 days before trial; the court considered the request on the morning of jury selection.  The court had an on-the-record discussion with defense counsel and then denied the motion.  Garcia, on the other hand, pleaded guilty but informed the PSR writer that he was considering moving to withdraw his plea and to substitute counsel.  The court denied the motion after discussing the matter with both the defendant and his attorney.

Judge Pigott dissented from Porto but joined the majority in Garcia.  For him, the critical difference between the cases was the failure of the trial court to inquire of the defendant personally.  All of the judges agreed on the legal standard:

  • A defendant has a right to counsel but not the right to particular counsel.
  • A trial court has a duty to consider a request to substitute only when a defendant has made a seemingly serious request.  Thus, a motion must be supported by facts.
  • If such factual allegations are made, the trial court must conduct a "minimal inquiry" into the matter.
  • A trial court ultimately has discretion whether to grant a motion to substitute or not.
  • A request to substitute counsel should not be casually granted.
  • A motion should be granted only when good cause is shown.  

In Porto, the majority was persuaded to affirm because the defendant's motion was a preprinted form and did not contain specific facts even the form had space to provide them.  Moreover, the court conducted an inquiry of defense counsel, who reported practicing law for decades and trying 30-40 felony cases.  Counsel reported only some frustration on the defendant's part, apparently having to do with fingerprint evidence.  Judge Pigott, in dissent, argued that the form motion itself was enough to trigger direct questioning of the defendant, since it alleged that counsel had not visited the defendant or kept him abreast of the case.  This, combined with defense counsel's concession that the defendant was frustrated, should have compelled further inquiry since there was an indication of the breakdown of trust.  Judge Pigott then made an interesting comment about the form nature of the defendant's motion:

The majority rests its decision primarily on the failure of defendant to make "specific factual allegations that would indicate a serious conflict with counsel, despite being provided the space to develop such a complaint" (maj opn at 9). In fact, defendant made three factual allegations in his pro se application and, if they lack specificity, it is only because they are negative in character, as one would expect from a complaint that a lawyer has failed to communicate.

In Garcia, all of the judges agreed that the minimal inquiry standard was met.  There was a discussion between the court, defendant, and defense counsel.  The court properly concluded that the defendant's last minute motion was a delay tactic.  (LC)