Nicholas D. Bowers

Key Points: Effective April 1, 2025, the Supreme Court of Pennsylvania has amended Pa.R.C.P. 220.3, pertaining to voir dire of jurors.  Amended Rule 220.3(a) now provides: “Judge’s Presence Required. Voir dire of prospective jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge’s presence is waived by all parties with the consent of the court.” The right to a trial by jury is a hallmark of the justice system in the United States. Juries consist of eight or twelve individuals from a given geographic area, generally lacking legal training, who are asked to decide facts and render verdicts, often of great consequence to the litigants. While jurors must follow the directions of the court, each juror has broad discretion in deciding, among other things, whether or not to believe a witness, how heavily to weigh competing evidence, and in determining whether they are or are not persuaded by arguments of counsel. In light of this, it is perhaps rightly said that many cases are won or lost during jury selection.  In Pennsylvania, attorney control of jury composition is generally limited to voir dire and peremptory challenges. Traditionally, voir dire procedures in Pennsylvania have varied from county to county—with some counties involving judges in the process more than others. In particular, Allegheny and Philadelphia Counties, for example, generally utilized court officers who controlled the voir dire process in the absence of the judge or court reporter.  Recently, however, a significant change in these procedures was adopted, with an effective date of April 1, 2025. Specifically, the Supreme Court of Pennsylvania amended Pa.R.C.P. 220.3, pertaining to voir dire of jurors, to include amended Rule 220.3(a), which now provides the following: “Judge’s Presence Required. Voir dire of prospective jurors shall be conducted, and the jurors shall be selected, in the presence of a judge, unless the judge’s presence is waived by all parties with the consent of the court.” (Emphasis added.) The adoption of amended Pa.R.C.P. 220.3 was preceded by the case of Trigg v. Children’s Hospital of Pittsburgh of UPMC, 187 A.3d 1013 (Pa. Super 2018), which involved an Allegheny County trial where jury selection occurred in the presence of a court clerk as opposed to the trial judge. The plaintiff appealed the jury verdict on, among others, the basis that three jurors should have been stricken for cause due to bias, as evidenced in voir dire, which occurred outside of the presence of the trial judge. The appellant argued the court’s decision not to strike was reversible error, while the appellees took the position that the trial court was entitled to the palpable error deference standard announced in McHugh v. Proctor & Gamble, 776 A.2d 266 (Pa. Super. 2001). Thus, no error warranting overturning the verdict occurred. The Trigg court took note of the fact that jury selection took place outside of the presence of the judge thus, depriving the trial court of the opportunity to assess the credibility of the proposed jurors to any extent beyond reading a transcript. Accordingly, per Trigg, the trial judge had no greater insight into the credibility of the proposed jurors—having not viewed the questioning live and, thus, lacked insight into the reactions of the proposed jurors to the questioning, including hesitation, eye movement or other physical manifestations impacting credibility—than the appellate court. Therefore, McHugh deference was not warranted.  The Superior Court overturned the verdict accordingly.  The Pennsylvania Supreme Court took up the case on appeal from the Superior Court in Trigg v. Children’s Hospital of Pittsburgh of UPMC, 229 A.3d 269 (Pa. 2020). While the Pennsylvania Supreme Court found that the issue in question had been waived due to counsel’s failure to object to the jury selection proceeding in the absence of the judge, the Supreme Court still found the procedure problematic, leading to adoption of amended Pa.R.C.P. 220.3. Amended Rule 220.3 will likely lead to greater uniformity in the jury selection process across counties in Pennsylvania. Unless waived by the parties, voir dire must now occur in the presence of a judge. It is important for practitioners to understand that each party is entitled to have the judge present for voir dire, and this right should not be waived absent an affirmative decision to do so approved by a client.  The Amended Rule may also assist litigants in the preservation of appellate issues, including those relative to a trial court’s decision to strike or decline to strike a juror for cause. The judge will be present along with a court reporter.  *Nick is a member of our Casualty Department. He works in our Philadelphia, Pennsylvania, office.    Defense Digest, Vol. 31, No. 1, March 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2025 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.