Expediency is not a good reason for a judge to dismiss jurors.

I was picking a jury the other day in Philadelphia County and the trial judge separated the pool of jurors into two groups, one that answered certain questions that were problematic and the other group where they didn't. We then questioned the first group and the second group was excused. Do I have an obligation to do something about this?

The art of jury selection has changed dramatically, particularly in large urban areas where there is an ever-growing pool of serious felony and murder jury trials. Older lawyers can remember at least when lawyers were allowed to do the individual voir dire in criminal cases. That still is allowed in many of the smaller counties. In Philadelphia, sometimes it is allowed if everyone agrees to have one of the court administrators conduct the voir dire. But, normally it's not allowed and most judges ask very few questions. Everyone is stuck with the preprinted jury questionnaire, which has proven to be confusing to jurors over the years. This change was done in the name of expediency. The goal is to now pick the jury quickly.

Even in capital matters, it is rare that it takes more than a day or two for the jury to be selected. I remember picking capital jurors in the early 1980s when it was the norm that there would be at least a two- or three-week time period to choose the jury. That is almost unheard of —in at least Philadelphia County—in this modern era.

With the limitations of questions by some judges and the preprinted questionnaire, picking a felony jury trial, at least in some urban areas, is about an hour to two-hour process. Now, it's becoming even quicker because judges have realized that problem jurors take longer to question. As a result, in the name of expediency, once the jury list is set up, the judge will cull through the questionnaires and remove jurors, particularly those who indicate they can't be fair or have problems following instructions, etc. Notably, the judges usually don't remove those who indicate they would more likely believe police.

The problem with this process is that many times the end result is to remove minority or other good jurors from the panel. Any experienced criminal trial lawyer knows that in voir dire many jurors can be rehabilitated. Many of them have not thought of these questions and sometimes their initial answers on the questionnaire are incorrect and will be changed once they understand the process. This is seen when jurors are questioned further by the court on whether they believe police just because of their occupation. Although many, many jurors answer they would believe police, once they are explained the question, most change their mind. This change of answer would happen on other questions also, such as whether one could be fair or whether one would follow certain jury instructions. But, there is never an opportunity to rehabilitate because these jurors have been taken off the list and sent home.

The result is often to effect diversity on the panel. There have been a number of studies that demonstrate, particularly in capital murder-type cases, that there is subtle discrimination in the jury selection process, which can result in under representation by minorities and diverse viewpoints on jury panels. For instance, a recent study showed 82 percent of the defendants who murdered white people were found to be more likely to be sentenced to death than those who murdered black people. And other studies have also shown racial disparities in striking jurors, particularly in capital murder-type cases. One study showed prosecutors using 60 percent of their strikes against black jurors even though black jurors were only 32 percent of the jury panel. It should be noted in other studies defense attorneys use 87 percent of their strikes against white jurors who make up 68 percent of the panel. The point is that there is subtle and maybe latent racism in the selection of jurors.

The problem of getting fair juries is enhanced when judges—on their own prior to jury selection—are removing people from jury panels just on the basis of how they answered certain written questions without meeting and talking and questioning these individual persons.

Jury selection is a very interesting process. Thousands of jurors are called for jury service each year. Now, random computer reviews select so many to come into a courthouse on a particular week to be potential jurors. And then another random computer selects 40 or 60 jurors to go up to a particularly courtroom. This random selection process, if done accurately and fairly, is supposed to result in a well-balanced jury panel so one gets a jury of their peers. But, all that hard work in terms of random selection, is undermined in the courtroom if the judge arbitrarily removes a number of jurors and gives no particular reason other than the judge didn't like their answers to certain questions. Obviously, the questions usually go to whether a jury might be fair or unfair, but it's a dangerous practice, particularly because it appears to remove more minority jurors than white jurors, and keep more highly educated and professional people than lower income people.

The question is, is it ethical for a judge to do this and is it ethical for lawyers to allow this to happen? But, expediency aside, there are some serious ethical issues that have to be confronted by doing this and judges might have to reexamine why they are doing it. There's no question that most judges are doing this with the best of intentions, i.e., to speed up the jury selection process and move a massive caseload forward. But, that by itself cannot be a justification. Good intentions don't always have the consequences everyone expects.

It would be better if jurors are brought up in the natural flow and not dismissed from the get go. A better practice would be just to address the problematic answers with the jurors first. Depending on the answer of the juror, they can be quickly let go or if they are rehabilitated, then they can be given the normal questioning process. Jurors should be called up in the same order they come up on the computer list and not taken out of turn because that undermines the whole random process of picking a jury.

It's always difficult for lawyers not to acquiesce with a judge in a matter. To tell the judge no, I want to question all the jurors sometimes results in a little bit of judicial ire or perhaps the feeling that the judge is going to black list that lawyer in the future. Since trial lawyers who are in court regularly depend on judicial goodwill, these are not concerns that are to be glossed over lightly.

But, there is a purpose to this random jury selection. And when that purpose is undermined by an arbitrary thought process of a particular judge, then there are problems. Further, one never knows whether or not a judge's biases or prejudices are playing into their arbitrary exclusion selection.

As a result, it appears that a competent lawyer should challenge that process and not accept it any longer, because ethically it would compromise potentially the client's right to a fair trial. The bottom line is to get a fair cross section of the community, the random selection process has stood the test of time if there is a broad enough jury pool. But, the apple cart is then upset when a judge throws away all the randomness. Contrary to modern opinion, jury trials were never meant to be done quickly and the process is supposed to take time to allow a fair jury. The quickening of society with instantaneous results has long ago undermined that concept of fairness.

The Rules of Professional Conduct involving a lawyer on this issue are Rule 1.1 involving competence and Rule 1.7 involving conflict. Under Comment 5 to Rule 1.1, it notes as follows: “Competent handling of particular matters includes inquiry into an analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners … the required attention and preparation are determined in part by what is at stake; major litigation and complex litigation ordinarily requires more extensive treatment than matters of a lesser complexity and consequences.”

Rule 1.7 on conflict precludes a lawyer from placing his or her interest over a client's interest. It might be nice to get that jury selected in one or two hours as opposed to one or two days, but that desire of the lawyer to get back to their law practice cannot override the fact that the client's interest must dominate. Further, Rule 1.4 of the Rules of Professional Conduct requires communication with a client. The client has to be explained everything to make a rational decision. It's hard to imagine any client would agree to the truncated jury selection process if they are fully explained what is happening and the consequences.

Under the Code of Judicial Conduct, Rule 1.1 of the code requires the Judge to comply with the law. The jury selection process has an established procedure to insure fairness and randomness in the selection process. For a judge to undermine that randomness and change the process by arbitrary removal clearly violates this particular provision. Rule 1.2 requires promoting confidence in the judiciary. A judge has to promote confidence in the independence, integrity and impartiality of the judiciary. Creating two lists of jurors out of this randomly selected list and getting rid of the second half is not going to do that. Under Rule 2.2, a judge has to uphold and apply the law and perform all duties fairly and impartially. A Judge, under Rule 2.3, can't allow bias, prejudice or harassment to interfere with their performance of duties. Although a judge might not intend to show any bias or prejudice, interfering with a randomly selected panel through a nonscientific way of culling the list might fall into that particular category.

Therefore, it appears that this arbitrary removal system should be disregarded despite the good intentions of expediency and at least some judges' opinions that this creates a fair jury panel. Lawyers then have a duty to object. Sometimes it's difficult to be a trial lawyer. Hard choices have to be made. But, the jury-selection process is the most important part of any jury trial. If one picks a bad jury, all else is usually to naught. The lawyer has an important responsibility to stop or object to this practice.

Withholding evidence is a very serious matter and can result in severe discipline.

A client has handed evidence of a crime to me. What do I do with it?

One of the reasons trial lawyers have shorter life expectancy than transactional lawyers is due to problems posed by the above question. Clients will bring in murder weapons or illegal audio tape recordings containing useful evidence, which also violate the Wire Tap Statute as a felony of the third degree. Similarly, other various relevant or partially relevant pieces of evidence are placed on the lawyer's desk. What the lawyer does with this evidence can result in some potentially serious disciplinary problems if not done correctly.

Rule 3.4(a) is the starting point. That rule reads: “A lawyer should not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potentially evidentiary value or assist another person to do any such act.”

Therefore, a lawyer can't have their investigator or the client do what the lawyer can't do. Once the lawyer is given items of evidentiary significance, the lawyer has to make the right decisions as to what to do.

One of the most critical things is not to alter or change the evidence. For instance, if a lawyer gets the murder weapon, the lawyer does not want to have that murder weapon cleaned up or even tested at that point. That could alter potentially evidentiary matters and issues. The weapon issue was resolved many years ago (and that's partially why Rule 3.4a currently exists). In the case of Commonwealth v. Stenbach, 514 A2d 114 (Pa.Superior Ct., 1986), the district attorney's investigators after investigating a murder crime scene didn't see the murder weapon for whatever reason. When the defense investigator went to the scene, the defense found the murder weapon. The defense lawyer took the murder weapon and just put it in his desk drawer. Later, that was discovered by the district attorney who then prosecuted the defense lawyer for obstruction of justice. That verdict was ultimately overturned on the basis that the statute was too vague to comply with due process. In the opinion, the court developed rules for evidence. Murder weapons or evidence of that nature have to be turned over without alteration to the district attorney. The quid pro quo is that the district attorney cannot use where or state where the weapon came from. This was done as an exception to the attorney-client privilege.

But, not all pieces of evidence fit into the category of a murder weapon. The illegally taped conversation between the defendant and perhaps a key witness or someone who is now saying something different can't be used. That is a violation of the Wiretap Statute and is a felony of the third degree and the lawyer can't even listen to the recording. But, if the lawyer gave that tape over to the district attorney, that by itself would be the basis to prosecute the defendant for a felony of the third degree. There is no requirement to give over evidence that totally implicates the client. The self-incrimination privilege at the constitutional level protects the client. Under those circumstances, a lawyer can maintain the tape but not destroy it, and not utilize it. Some lawyers just give the tape back to the client and telling them that it's illegal and perhaps suggesting they erase it. That advice gets a little dicey, but probably is not impermissible under the circumstances.

The key is not to obstruct evidence of a case whether it's a civil or criminal case. The comment to the rule notes as follows: “Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, destructive tactics, and discovery procedure and the like.”

Comment 2 to Rule 3.4 notes as follows: “Paragraph A applies to a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. In such a case, applicable law may require the lawyer to turn the evidence over to the police or other prosecuting authority, depending on the circumstances.”

In the competitive trial game, it's so easy to want to not hand something over. But, every lawyer has to remember winning is not the sole purpose of litigation. The purpose is to do justice and present a fair and just trial, obviously emphasizing one's position.

Withholding of evidence is a very serious matter and can result in severe discipline. Withholding evidence can cause severe consequences and unfairness and can corrupt a trial. Lawyers have a great responsibility not only to their client in terms of attempting to prevail on the client's behalf, but more importantly to the system to ensure that whatever the lawyer and client does is done within the rule of ethics. Failure to understand that and to see trials as just a business decision where hiding evidence is just part of the game is a major mistake. Such a mistake can have long-term severe and unforeseen consequences.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.