On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The question before the Court is whether criminal defendants have a right to attend sidebar conferences held during jury selection.
Defendant, W.A., was charged by indictment with second degree sexual assault and second degree endangering the welfare of a child in connection with an incident involving his nine-year-old daughter. The facts of that incident have no relevance to the procedural issue before us. On the first day of trial, defense counsel made several motions in limine. In a colloquy during the motions, the trial judge informed defense counsel that, as a matter of practice, he did not permit defendants at sidebar. Other than that exchange, the issue of W.A.'s appearance at sidebar was not raised again.
During his opening remarks during voir dire, the trial judge instructed the jurors to address the court at sidebar about any biases, prejudices, or anything else that might prevent them from deliberating in a fair and impartial manner. Fifty-one of the eighty six potential jurors seated and examined during voir dire participated in sidebar conferences in response to that opening explanation. Based on videotapes, it appears that defense counsel went to the judge's bench and remained there for the entire duration of each sidebar conference. Five jurors returned to the jury box from sidebar. Of those five, two deliberated, two were struck by the State, and one was struck by the defendant. One particular juror, Victoria Li, juror number eleven, indicated at sidebar that she was once a practicing attorney serving as a Law Guardian in New York and that she still had a children's advocate mentality, but that she could be impartial and would apply the law as instructed. Ms. Li returned to the jury box and neither side moved to strike that juror although defense counsel had all of his peremptory challenges remaining. It appears from the videotape that defense counsel had no real opportunity to consult with W.A..
W.A. was convicted of second degree sexual assault and acquitted of the endangering count. He was sentenced to a custodial term of six years, assessed appropriate fines and penalties, and required to comply with Megan's Law. W.A. appealed and the Appellate Division affirmed. On the issue of W.A.'s presence at sidebar during voir dire, the panel held, in part, that although defendant had a right to be present at all stages of his trial including voir dire, he waived that right because he did not "request to be present at sidebar during voir dire." The panel further concluded that defendant was not deprived of meaningful participation as he was able to participate through "standby counsel."
We granted W.A.'s petition for certification on the sole issue of his right to participate in voir dire sidebars.
HELD: Under Rule 3:16, a defendant, who requests it, ordinarily has a right of presence at voir dire sidebar conferences. However, that right is not absolute, and where security issues are implicated, a court may utilize other methods to secure a defendant's meaningful participation in voir dire including technology, the modified struck-jury system, and, as a last resort, the "lawyer-shuttle" process. A defendant's exclusion from sidebar, after having requested presence, and in the absence of a substituted process such as the use of technology, does not automatically warrant reversal.
1. Every criminal defendant has the right of presence at his own trial. The right of presence includes jury selection. R. 3:16(b). The jury selection process is made up of distinct parts that include the challenge for cause (R. 1:8-3(b)) and the peremptory challenge (R. 1:8-3(d)). Although interrelated, the two classes of challenge are actually quite distinct. Because the challenge for cause involves proof of legally cognizable grounds, it can be fairly characterized as within the attorney's field of expertise. On the contrary, it is the defendant himself who plays the critical role in exercising the peremptory challenge. There exists an undefinable frisson either of comfort or unease that passes from one person to another that is the essence of the peremptory challenge and that is a crucial rationale for affording a defendant the right to be present at the questioning of potential jurors. And although peremptory challenges have never been held to be required by the Federal Constitution, they have been recognized as an important part of the jury selection process. (Pp. 9-14)
2. Our jurisprudence, although helpful, is not dispositive of the issue of a defendant's entitlement to presence at sidebar. The case most directly on point is State v. Dishon (citations omitted), in which the Appellate Division reiterated that a criminal defendant has a right to be present at every critical stage of his or her trial, including the impaneling of the jury, and is entitled to see a potential juror's responses to questions for himself to better determine possible biases. Otherwise, a defendant cannot properly utilize his peremptory challenges. Although Dishon is close to the situation in the current case, it is not on all fours, and the panel therein "expressly" refused to reach what is now squarely before us. By its terms, Rule 3:16 provides a defendant with the right of presence at every stage of his trial, including sidebar conferences during jury selection. It is important to recognize, however, that presence at sidebar need not always mean physical presence. In the event that safety issues militate against a defendant's physical presence at a voir dire sidebar, other methods should be employed to guarantee his meaningful participation in the jury selection process. Those methods include the use of technology, a modified use of the struck-jury system, and, if all other methods are unavailable, the judge may resort to the lawyer-shuttle system. When the lawyer-shuttle system is used, the lawyer must confer with his client after each sidebar interview that involves more than innocuous scheduling-type matters. In addition, the judge should take a recess before defendant's peremptory challenges are exercised to allow him to listen to the tape or review the court stenographer's notes of the side-bar colloquy with the non-excused jurors. By that approach, we balance the court's interest in security, the juror's in privacy, and the defendant's in presence. (Pp. 14-24)
3. The majority of federal courts that have specifically addressed the sidebar presence issue are aligned with the view that failure to assert the right constitutes a waiver. Most states (and the District of Columbia) addressing the issue agree. We think the majority view makes sense -- a defendant who does not affirmatively request the right to participate in voir dire sidebars should be considered to have waived that right; and we so hold. But a defendant's exclusion from sidebar, after having requested presence, and in the absence of a substituted process such as the use of technology, does not automatically warrant reversal; each case is subject to a harmless error analysis. In other words, reversal will not be automatic but will depend on the facts. (Pp. 24-29)
4. In this case, W.A. was not allowed at sidebar; no electronic means were made available to allow him to access the sidebar process, and, as far as the videotapes reveal, defense counsel did not confer with him after the colloquy involving Ms. Li, juror number eleven. Because Li's view of herself as a child victims' advocate went to the heart of the issue in this case, W.A. may very well have peremptorily challenged her had he heard her responses. Therefore, the process that led to her service was necessarily harmful error. R. 2:10-2. (Pp. 29-32)
The judgment of the Appellate Division is REVERSED. The matter is REMANDED for a retrial in accordance with the principles to which we have adverted.
JUSTICE RIVERA-SOTO filed a separate opinion, CONCURRING in part and DISSENTING in part, stating that defense counsel's unexcused and unexplained failure either to object to the exclusion from sidebar or make a request in the first instance must foreclose direct appellate relief.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in JUSTICE LONG's opinion. JUSTICE RIVERA-SOTO filed a separate opinion, concurring in part and dissenting in part.
The opinion of the court was delivered by: Justice Long
Every criminal defendant has the right of presence at his own trial, including jury selection. The specific question before us is whether that right incorporates an entitlement to attend sidebar conferences held during jury selection. The answer is that, under Rule 3:16, a defendant, who requests it, ordinarily has a right of presence at voir dire sidebar conferences. However, that right is not absolute, and where security issues are implicated, a court may utilize other methods to secure a defendant's meaningful participation in voir dire, including technology, the modified struck-jury system, and, as a last resort, the "lawyer-shuttle" process.
Defendant, W.A., was charged by indictment with second degree sexual assault and second degree endangering the welfare of a child in connection with an incident involving his nine-year-old daughter. The facts of that incident have no relevance to the procedural issue before us, and they therefore need not be recounted in detail.*fn1
In terms of procedure, the first day of trial began with defense counsel's motions in limine. During the motions, the judge asked if defense counsel had ever tried a case in his courtroom. (The judge apparently knew the prosecutor from other trials.) The following exchange occurred:
THE COURT: I don't think you've ever tried a case before me, Mr. Daly. Is that correct?
MR. DALY [defense counsel]: Excuse me, Judge?
THE COURT: You have never tried a case before me.
MR. DALY: No. I have not tried a case before you, Judge.
THE COURT: So we do -- I do little sidebars here by the microphone. There is -- they're under -- they're recorded, of course. All sidebars are. Every once in a while I get the request to have the defendant go up to the sidebar. I don't think that's appropriate, and I don't think that's fair to anyone as far as the jurors. I would assume that is or is not your request to have the -- your client present at sidebars?
MR. DALY: Judge, there are a number of other -- just a few more things that prior to picking the jury I do want to make in limine.
The issue of defendant's appearance at sidebar was not raised again.
The judge's opening remarks during voir dire contained the following:
It is important to recognize any biases, prejudice, fixed opinions, or views that may have an effect on your ability to be fair and impartial as a juror. And I'll ask you to please let me know that at sidebar.
For any reason, if the questions I am asking you do not cover what you think may be a bias or a prejudice or make it impossible and improper for you to serve, please let me know that also at a sidebar. If you cannot listen to the evidence with an open mind and be fair and impartial, it's important that you let that -- you let me know that information, once again, at a sidebar.
Fifty-one of the eighty-six potential jurors seated and examined during voir dire participated in sidebar conferences in response to that opening explanation. Based on videotapes, it appears that defense counsel went to the judge's bench and remained there for the entire duration of each sidebar conference.
Potential jurors were excused for cause at sidebar because they indicated that they: could not be impartial (twenty-five jurors); had scheduled engagements that could not be altered (seven jurors); had problems hearing or understanding English (three jurors); or knew someone connected to the case (two jurors). (The causes for the sidebar excusal of nine other jurors are unclear because of the videotapes' poor quality.) Five jurors returned to the jury box from sidebar. Of those five, two deliberated, two were struck by the State, and one was struck by the defendant.
One of the jurors who was eventually seated was questioned at sidebar because she expressed reservations about sitting on the case. In response to the judge's open court question to her, "Any reason you could not serve as a juror in this case based upon any of the questions?", juror number eleven, Victoria Li, told the judge that she "[did] have some concerns." At sidebar, Li stated that she had practiced law and might be biased due to her prior work with children:
MS. LI: I don't currently practice law, but when I did I was a Law Guardian, Juvenile Division, Bronx County Court. So while I'd like to think I can be impartial, I still have a strong sense of [being a] children's advocate.
THE COURT: Okay. Do you think you can be fair and impartial?
MS. LI: The same way, my thoughts, my tendencies are to think of myself as representing a child and ...