Even the most seasoned of Pennsylvania trial practitioners may want to proceed under the guidance of experienced appellate counsel to avoid waiver during trial.
The Pennsylvania Supreme Court declined to rule on a case involving the role of trial judges in jury selection and instead found that the issue was waived by trial counsel. On April 22, 2020, the Pennsylvania Supreme Court issued its opinion in Trigg v. Children’s Hospital of UPMC, a closely watched appeal regarding whether a trial judge erred by not observing prospective jurors that were challenged for cause. However, this issue is unresolved because the Court instead unanimously ruled that the issue was not properly preserved for appellate review.
Mendy Trigg sued the Children’s Hospital of University of Pittsburgh Medical Center, alleging that the hospital negligently placed her 4-year-old daughter, J.T., in an adult-sized hospital bed during her post-operative care, which injured J.T. During jury selection, the court clerk was present, but the trial court judge was not. A question came up during jury selection: Could a prospective juror with family in the medical profession be impartial?
At the conclusion of jury selection, Trigg moved to strike that juror, as well as two other jurors, for cause. In deciding the motion, the trial court judge read the transcript of jury selection because the judge had not been present to witness the demeanor of the prospective jurors. The trial court denied Trigg’s motion; Trigg then used three of her four preemptory strikes to keep the three jurors off the jury. Ultimately, the jury returned a verdict in favor of Children’s Hospital.
Trigg appealed and argued, among other issues, that the trial court judge erred in denying the for-cause juror challenges because the judge was not present to view the demeanor of the prospective jurors. The trial court’s opinion noted that Trigg had never requested the judge be present during jury selection and had not requested that the judge interview the prospective jurors. Rather, Trigg only requested that the trial court judge read the transcript of those jurors’ responses in deciding the motion to strike the jurors for cause. The Pennsylvania Superior Court applied a de novo review of the trial court’s decision and held that the trial court erred in denying the motion to strike and granted Trigg a new trial. In reaching its decision, the Superior Court focused its analysis on the trial court judge’s lack of personal observation of the prospective jurors during jury selection, holding that “[a] judge personally witnessing the original voir dire is essential, because it justifies our — and a losing party’s — faith in the trial court’s rulings on challenges for cause.”
Pennsylvania Supreme Court Finds Waiver
The Pennsylvania Supreme Court declined to consider the impact of the trial court judge’s lack of personal observation of the prospective jurors during jury selection, and instead found that Trigg waived the issue because she did not properly preserve her objection on the trial court’s lack of personal observation at the trial court level. The Court opined that Trigg did not make a pretrial motion for the judge to be present during jury selection. Further, the Court found that Trigg also did not contemporaneously object to the trial judge’s absence from jury selection when she raised a for-cause challenge to the prospective jurors. Finally, the Court found that the record was devoid of any reference concerning the trial court’s inability to observe the demeanor of the prospective jurors. Accordingly, the Court held that the Superior Court erred in reaching this issue, and reversed and remanded the Superior Court’s decision so that the Superior Court could address Trigg’s other arguments regarding the denial of her motion to exclude the prospective jurors.
The Supreme Court, in its opinion and two concurring opinions, highlighted the need for counsel to build their appellate record through timely objection during trial proceedings. As Justice Wecht wrote in a concurring opinion:
to succeed on appeal, counsel is obligated to take affirmative steps to build a record. This is so even where counsel does not believe that a timely objection will remedy the challenged conduct. But even if counsel is certain that the court will overrule the objection, the objection is not futile. Rather, an overruled objection becomes the basis of an appeal. One cannot succeed on appeal by wasting the opportunity to preserve an issue at trial.
While acknowledging the issue was waived, both concurring opinions expressed “deep misgivings” about jury selection procedures that permit questioning potential jurors outside of the presence of a judge.
Trigg underscores an issue of vital importance during trials in Pennsylvania: Issues that are not raised to the lower court are generally waived and cannot be reviewed for the first time at the appellate level. Trial court attorneys can avoid waiver by timely raising issues via pretrial motions, including motions in limine, or making objections at the time of trial. Here, Trigg’s motion to strike the prospective jurors did not include any objection to the trial court’s lack of presence during jury selection or the trial court’s inability to observe the demeanor of the prospective jurors. Trigg’s failure to include these objections precluded the Supreme Court from reaching these issues. Even the most seasoned of Pennsylvania trial practitioners may want to proceed under the guidance of experienced appellate counsel to avoid waiver during trial.
Further, Trigg demonstrates the importance of knowing the court’s practices and procedures, especially regarding jury selection. Trial counsel should confirm local practices and make requests for trial judges to be present during jury selection as needed to preserve the issue. Aadditionally, if the trial counsel questions a potential juror’s impartiality while a judge is not present, counsel should request that the trial court judge hold a conference with the juror to personally observe their demeanor. Because the Pennsylvania Supreme Court did not reach the ultimate issue regarding the trial court’s role in jury selection, this issue remains open―meaning trial lawyers should preserve the issue, especially because the Court’s concurring opinions suggest that at least some members of the Court are interested in requiring the trial court have a more active role.
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 Ms. Trigg brought claims on behalf of herself and her minor child, J.T.
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