The Right To Be Present at Voir Dire Includes a Right To Observe Potential Jurors, Not Just Hear What They Say

Hager & Davis v. United States, Nos. 09-CF-1405, 10-CF-65, 10-CF-66 & 10-CF-67

Players:  Glickman, Oberly, Reid.  Opinion by Judge Oberly.  Bruce A. Johnson, Jr., for Mr. Hager.  Jenifer Wicks for Mr. Davis.  Trial judge:  Gregory Jackson.

Facts:  Before voir dire began at a joint robbery trial, Mr. Davis’s counsel asked the trial judge “if we can pick the jury in the back, because otherwise it would get very crowded at the bench and I would like Mr. Davis to hear what goes on.”  The trial judge responded that he could instead provide headsets “so that Mr. Davis and, if necessary, Mr. Hager, can hear everything that goes on.”  Mr. Davis’s counsel answered that she “would rather be able to consult with him during it, but headsets is better than nothing.”  The judge countered that “if we have to go to the jury room it will slow us way down,” and ordered the headsets. 

The voir dire was conducted at the bench without the defendants, and “the record is thin” on what the defendants were able to see.  The government conceded at oral argument that “at best, it was ‘possible’” that Mr. Davis might have been able to see the sides of jurors’ faces at the bench, and their full faces as they walked away from the bench after voir dire. 

Initial tests of the headsets before individual voir dire revealed that they were not working properly, but the court moved on with voir dire, apparently without waiting for the problem to be fixed.  Mr. Davis’s counsel pointed out “at least once more during voir dire” that the defendants were having trouble hearing.    

Issue:  Did the trial court violate Mr. Davis's right under the Fifth and Sixth Amendments and Superior Court Criminal Rule 43(a) to be present at his own criminal proceeding by denying his request to be present at the bench during voir dire?

Held:  Yes.  It was constitutional error to conduct voir dire in a manner that prevented the defendant from reasonably observing potential jurors during questioning.

Of Note: 

Error:

• The court emphasizes that the problem here was that Mr. Davis was not able to see the jurors while they were at the bench.  The right to be present at voir dire “extends not only to the defendant’s ability to hear the responses that jurors give, but also to reasonably view their demeanor during those responses in order to assess their various qualities as jurors and make decisions about whether to exercise challenges.  Otherwise, the defendant’s right to ‘observe’ voir dire would be rendered meaningless.”  Slip op. at 14. 
• Thus, although the faulty headphones compounded the error, they were not the primary problem.
• Given the thin record about what Mr. Davis could actually see during voir dire, as well as the government’s concessions at oral argument, the DCCA found it “reasonable . . . to assume that from Davis’s position while sitting at counsel table the jurors were turned away from him and his primary view during voir dire would have been of their backs.” Slip op. at 14-15.
• There were no extenuating circumstances such as security concerns that might have justified the denial of Mr. Davis’s request to be present.

Harm:

• “[T]he best view of whether the error was harmless looks at the degree to which the error impacted the defendant’s ability to meaningfully participate in the voir dire,” rather than the strength of the government’s case.  Slip op. at 16 note 8.
• The harm analysis “does not focus on the significance of the jurors’ answers,” because it   is “where the juror seems uncontroversial, but where the defendant desires to exercise his right ‘to express an arbitrary preference,’ in which the defendant’s presence is needed most greatly.”  Slip op. at 16 note 8.

Preservation:

• The defense must assert the right to be present at the bench for voir dire, and a failure to assert the right constitutes a waiver.
• Mr. Davis’s counsel sufficiently asserted his right to be present and preserved the issue for appeal by asking to “pick the jury in the back, because otherwise it would get very crowded at the bench and I would like Mr. Davis to hear what goes on.”
• Although there were some ambiguities in the ensuing colloquy between counsel and the court, the trial judge had a responsibility to determine whether Mr. Davis “interpreted his comment as a denial or was intentionally relinquishing the right he had clearly asserted only seconds before,” slip op. at 12, and the judge “made no effort to assume this responsibility.”
• Mr. Hager did not assert his right to be present and therefore waived the issue for purposes of appeal.

How To Use:

Hager makes clear that the right to be present at voir dire is not merely a right to hear what jurors are saying.  If a defendant makes a request to be present at the bench for voir dire—or, as in this case, to conduct voir dire “in the back” in anticipation that it would be too crowded at the bench—it is not an adequate response for the court to offer headphones.  It is critical to assert the right to be present during voir dire, however, and it does not take much to do so.  Mr. Hager did not assert his right, and as a result he does not benefit from the court’s decision.  MW. 

Read Hager and Davis v. United States