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Important Impact on Voire Dire

May 29, 2018
Roberto Fernandez
Posted in: Professional Liability

“Palpable Error” in Failing to Personally Observe Voire Dire

In Trigg v. Children’s Hospital of Pittsburgh, 2018 Pa. Super. Lexis 499 (May 14, 2018), the Pennsylvania Superior Court held that the McHugh deference standard is not afforded to trial judges who fail to observe voire dire in person. In McHugh v. Proctor & Gamble (2001), the Pennsylvania Supreme Court provided trial judges significant deference by finding that reversal of a ruling on challenges for cause are appropriate only in instances of “palpable error.” In adopting the “palpable error” standard the Pennsylvania Supreme Court placed great importance on a trial judge’s personal observation of a prospective juror’s conduct and demeanor. However, during jury selection in Trigg v. Children’s Hospital of Pittsburgh the trial judge did not personally observe voire dire. In its place, the trial judge ruled on challenges for cause by reading the transcript, a procedure that is allowed in Allegheny County. The Pennsylvania Superior Court found that “palpable error” existed because the trial judge did not take into account the juror’s conduct and body language when ruling on the challenge. Additionally, the Court found that the error was harmful because one party was forced to use a peremptory challenge to exclude a juror who should have been excluded for cause. Decisively, the Superior Court held that the McHugh standard is limited to instances where a trial judge has personally observed the original voire dire. The case was remanded for a new jury selection and trial. This opinion may have a significant effect in Philadelphia County where judges generally do not personally observe or conduct voire dire.