Voir dire; Right to question prospective jurors’ potential bias as to the trustworthiness of certain categories of witnesses
Commonwealth v. Smith, 2023 WL 4174154 (Pa. Super.) (unreported), allocatur granted Apr. 9, 2024, appeal dockets 35–36 WAP 2024; Commonwealth v. Walker, 305 A.3d 12 (Pa. Super. 2023), allocatur granted Apr. 9, 2024, appeal docket 13 WAP 2024
In this set of cases scheduled to be consecutively argued, the Pennsylvania Supreme Court will consider the right of a party to question prospective jurors’ on voir dire regarding their potential bias as to the trustworthiness of certain categories of witnesses.
Commonwealth v. Smith, 301 A.3d 928 (Pa. Super. 2023)
James Smith was charged with rape of a child, unlawful contact with a minor, corruption of minors, involuntary deviate sexual intercourse with a child, and aggravated indecent assault of a person less than 13 years of age arising from his assault of minors, M.B. and A.G. Prior to trial, Smith submitted proposed voir dire questions to the trial court, including the question, “Are you more likely to believe the testimony of a child alleging sexual abuse because you do not believe a child could lie about sexual abuse?” The Commonwealth objected to that question. The trial court excluded that question from jury selection on the basis that “the proposed voir dire question was improperly intended to gain insight into the juror’s present impressions about how they would weigh the victims’ testimony”; moreover because the trial court “gave prospective jurors a proper instruction during voir dire on how to evaluate witness credibility,” the court reasoned that “no error occurred from its refusal to allow Smith’s proposed question.” Slip op. at 6, citing Trial Ct. Op. at 10-11. Following trial where the victims testified, Smith was ultimately convicted of all charges. Superior Court summarized the trial court’s findings as follows:
Here, the court found the evidence was sufficient to sustain Smith’s conviction for unlawful contact with a minor as to M.B. It determined that Smith instructing M.B. to perform oral sex on him, physically taking M.B. to another room to perform sexual acts on her, taking her clothes off, and taking his clothes off constituted verbal and non-verbal communications for the specific purpose of engaging in sexual conduct with a child. Trial Ct. Op. at 9. Similarly, the court found the evidence was sufficient to support Smith’s conviction for unlawful contact with a minor as to A.G. Id. A.G. testified that Smith told her to lay on a table on her stomach and then he anally raped her. Id. Smith also instructed A.G. to perform oral sex on him. Id. The court found that Smith’s “commands were verbal precursors to illicit sexual acts with A.G.[,]” and his “actions clearly demonstrate[d] the type of communication and contact covered under the statute.” Id.
Slip op. at 10. Smith appealed to Superior Court, challenging the sufficiency of the evidence to support his conviction and the trial court’s exclusion of Smith’s proposed voir dire question. As to the voir dire exclusion, Smith argued that:
the trial court’s exclusion of his proposed voir dire question violated his right to a fair and impartial jury. Smith’s Br. at 13. He notes that the Commonwealth’s entire case hinged on M.B. and A.G.’s testimony, which was uncorroborated by physical or medical evidence. Id. at 10. Therefore, he argues that the jury’s verdict would necessarily rest on its evaluation of the victims’ credibility. Id. Smith contends that he had the right to explore whether any prospective jurors had a preconceived belief that a child would not lie about being sexually abused. Id. at 14-15. He emphasizes that allegations of child sexual abuse, such as those in this case, may carry significant emotional impact which may make a juror incapable of rendering a fair verdict. Id. at 14. Smith further argues that certain jurors may be predisposed to credit a child victim’s testimony simply because of the victim’s young age. Id. He thus maintains that the court erred by failing to pose his proposed question or make a comparable inquiry. Id. at 20.
Slip op. at 5.
Superior Court held that the trial court did not abuse its discretion in excluding Smith’s proposed question, reasoning that:
The question wholly involved the victims’ credibility, was essentially argumentative, and impermissibly sought to gauge jurors’ receptiveness to possible defense strategies. See Ritter, 615 A.2d at 447; Paolello, 665 A.2d at 451. Moreover, the court’s other questions and statements to potential jurors adequately addressed concerns about prospective jurors’ ability to be impartial. The court informed the members of the panel that they would be asked to determine if witnesses were “telling the truth, lying or simply mistaken.” N.T., 6/22/21, at 15. It explained that they would do so “considering what were their opportunities to see, hear or understand a particular fact or incident and determine if a witness is credible,” and that they were to do so using “the same standard for everyone, regardless of a person’s status of what they do for a living.” Id. It then advised them that Smith was charged with sexually abusing two children between the ages of six and eight and asked if they could be fair and impartial considering the nature of the charges. Id. at 20-22. Smith offers no authority mandating that courts ask prospective jurors whether they believe a victim of a particular category of crime could lie, and we are aware of none. Instead, he cites cases upholding challenges to the denial of voir dire questions relating to potentially controversial social issues, such as racial and law enforcement prejudice, tort reform, and sexual orientation, that could affect jurors’ overall ability to be impartial. Accordingly, the court did not abuse its discretion in excluding Smith’s question from voir dire.
Slip op. at 6-7.
Superior Court further held that the evidence was sufficient to sustain Smith’s conviction for unlawful contact with a minor as to M.B. and A.G., opining that:
Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, we find that the evidence was sufficient to prove that Smith communicated with the victims both verbally and physically for the purpose of engaging in illegal sexual activities. By his own admission in his appellate brief, Smith asked both M.B. and A.G. to perform oral sex on him and told A.G. to lay on a table immediately before sexually assaulting her. See Smith’s Br. at 21. These statements demonstrate the type of communication contemplated by the statute.
Smith’s argument that application of Section 6318 results in virtually every individual who sexually assaults a child being automatically guilty of the additional crime of unlawful conduct with a minor is erroneous. This Court has held that evidence that a defendant engaged in sexual contact with a minor, by itself, is insufficient to support an unlawful contact with a minor conviction. See Commonwealth v. Leatherby, 116 A.3d 73, 80 (Pa. Super. 2005) (vacating unlawful contact with a minor conviction as to minor who testified only that defendant came into her room and touched her breasts and buttocks without saying anything).5 Rather, to sustain a conviction under Section 6318, the defendant must have been in some contact or communication with the victim for the purpose of engaging in specified prohibited conduct. Here, the evidence established Smith communicated with M.B. and A.G. for the purpose of sexually assaulting them. Therefore, the evidence was sufficient to prove the “contact” element of the crime of unlawful contact with a minor.
Slip op. at 11.
The Pennsylvania Supreme Court granted allocatur to consider the following issues:
(1) In a sex abuse case where the uncorroborated testimony of two child complainants was at issue, did the Superior Court err by holding [p]etitioner had no right to ask prospective jurors if they held a fixed belief that children would not lie about being sexually abused, contrary to this Court’s decisions holding that an inquiry into prospective jurors’ potential bias as to the trustworthiness of certain categories of witnesses is necessary on voir dire?
(2) Has the Superior Court, contrary to the terms of the statute and the intent of the legislature, impermissibly expanded the scope of criminal liability of 18 Pa.C.S. § 6318, unlawful contact with a minor?
The Supreme Court ordered that Issue (1) be scheduled for oral argument at the same session as, and consecutive to, Commonwealth v. Walker, while Issue (2) be submitted on the briefs.
Commonwealth v. Walker, 305 A.3d 12 (Pa. Super. 2023)
Harold Walker was charged with rape of a child and related offenses. The trial court permitted the Commonwealth to ask the following question to prospective jurors during voir dire:
Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?
Slip op. at 3. Following a jury trial, Walker was convicted on all counts. Walker appealed to Superior Court, arguing, as summarized by Superior Court, that:
the Commonwealth asked its voir dire question for the improper purpose of determining what the prospective jurors’ attitudes would be when “asked to pass upon the guilt of [Appellant] after having been presented with nothing more than [the victim’s] uncorroborated allegations.” Appellant’s Brief at 35. Relatedly, Appellant insists that the question was improper because it “was in the nature of a jury instruction” and it inquired “into each prospective juror’s understanding and opinion of specific principles of law and their ability to accept and act upon them….” Id. at 32-33.
Slip op. at 5.
Superior Court held that the Commonwealth had a proper purpose for asking the voir dire question, reasoning that:
The voir dire question was derived from a standard jury instruction, which reads:
The testimony of [name of victim] standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in this case. The testimony of the victim in a case such as this need not be supported by other evidence to sustain a conviction. Thus you may find the defendant guilty if the testimony of [name of victim] convinces you beyond a reasonable doubt that the defendant is guilty.
Pa. SSJI (Crim) 4.13B. In turn, this jury instruction came from 18 Pa.C.S.A. § 3106, a statute pertaining to sexual assault cases, which provides:
The credibility of a complainant of an offense under this chapter shall be determined by the same standard as is the credibility of a complainant of any other crime. The testimony of a complainant need not be corroborated in prosecutions under this chapter. No instructions shall be given cautioning the jury to view the complainant’s testimony in any other way than that in which all complainants’ testimony is viewed.
18 Pa.C.S. § 3106.
The Commonwealth had a proper purpose for asking the voir dire question. Its purpose was to identify jurors who hold fixed beliefs that are untenable under Section 3106—specifically, the belief that a defendant’s guilt cannot be established beyond a reasonable doubt in a rape case (1) without DNA or other forensic evidence or (2) when the case boils down to the word of the complainant versus the word of the defendant (a so-called “he said, she said” case). Any prospective juror holding either of these fixed beliefs had to be questioned further and had to be excused for cause if he could not set aside those beliefs. See Commonwealth v. Kelly, 134 A.3d 59, 60 (Pa. Super. 2016) (it is appropriate to use voir dire examination to disclose fixed opinions or expose other reasons for disqualification of prospective jurors).
Slip op. at 5-6. In so holding, Superior Court noted that two “recent unpublished decisions provide persuasive authority for finding the voir dire question proper: Commonwealth v. Antill, 2019 WL 2950181 (Pa. Super., Jul. 9, 2019), and Commonwealth v. Wilson, 2020 WL 5423952 (Pa. Super., Sep. 10, 2020), vacated on different grounds, 272 A.3d 446 (Pa. 2022),” explaining that:
In both cases, we held that voir dire questions identical in substance to the question herein were asked for a proper purpose. In Antill, the Commonwealth asked prospective jurors, “Under Pennsylvania law, the testimony of the victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty if the testimony of the victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?” Antill, 2019 WL 2950181, *1. A panel of this Court explained:
Antill argues that “questions which are in the nature of jury instructions are wholly inappropriate for voir dire examination.” In support of this proposition, Antill cites to … Bright…. Upon reviewing Bright, we conclude Antill’s argument stretches the language of that opinion beyond the breaking point.
In Bright, the defendant sought to ask prospective jurors regarding their ability to dissent from the views of the majority of their fellow jurors. [See Bright, 420 A.2d at 717]. The trial court refused the defendant’s request. See id. Importantly, this Court held that “the question was in the nature of a jury instruction and that, since the court gave proper instructions, no error occurred from the refusal to allow the question.” Id. After examining the trial court’s instructions to the jury, the Bright panel concluded “the [trial] court’s opening remarks and closing instructions … clearly demonstrate the trial court adequately and correctly instructed the jury.” Id.
As a result, the Bright Court did not affirmatively hold that the proposed instruction should be excluded due to its similarity to a jury instruction. Instead, the Court merely found that the trial court did not err in excluding the question since the trial court properly instructed the jury on the relevant points of law.
Here, Antill is attempting to turn Bright into a bright-line rule that would effectively eviscerate our standard of review. We decline to accept Antill’s invitation to create a new standard for voir dire proceedings.[2]
[2]Antill also cited Commonwealth v. Perea [252 Pa.Super. 272], 381 A.2d 494 (1977), Commonwealth v. Hoffman [263 Pa.Super. 442], 398 A.2d 658 (1979), and Commonwealth v. Ritter [419 Pa.Super. 430], 615 A.2d 442 (1992), for the same proposition as Bright. Each of these precedents are similar to Bright, in that this Court reviewed a trial court ruling denying a requested jury instruction. See Perea, [381 A.2d] at 496; Hoffman, [398 A.2d] at 660; Ritter, [615 A.2d] at 446-447. None of them created the bright line rule sought by Antill here.
Turning to the circumstances at hand, the Commonwealth’s case was based almost entirely on the victim’s testimony. Pursuant to this state of affairs, we cannot conclude the court abused its discretion when it permitted a question designed to expose any fixed opinions of the jurors regarding the lack of physical or corroborating evidence. As such, the question was used to “secure a competent, fair, impartial and unprejudiced jury” and was not used to ascertain the effectiveness of a potential trial strategy. See [Commonwealth v.] Ellison [588 Pa. 1], 902 A.2d [419,] 423-24 [(2006)].
Id. at *1-2 (some citations omitted); see also Wilson, 2020 WL 5423952, at *5-7 (citing above passage in Antill).
Slip op. at 6-8. Superior Court rejected Walker’s remaining arguments, concluding that:
Appellant also contends that the voir dire question incorrectly states the law, since it did not instruct that the victim’s testimony must be believed beyond a reasonable doubt and be sufficient to establish each element of the crimes with which Appellant was charged. Appellant’s Brief at 42. We hold that the voir dire question was legally valid. Its first sentence states that the testimony of the alleged victim, standing alone, is sufficient proof upon which to find the defendant guilty. This precept is correct under both the text in 18 Pa.C.S.A. § 3106 that “the testimony of a complainant [in a sexual assault prosecution] need not be corroborated” and the many decisions that follow this precept. See, e.g., Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super. 2015). The second sentence of this question states that the defendant may be found guilty if the alleged victim’s testimony convinces the jury beyond a reasonable doubt that the defendant is guilty. This sentence accurately states that the Commonwealth’s burden of proof is beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Due Process Clause of Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged”).
Appellant contends that the voir dire question is invalid because its first sentence does not state that an accuser’s testimony standing alone, must be believed by the jury “beyond a reasonable doubt” in order to find the defendant guilty in a sexual assault case. Appellant’s Brief at 27. Appellant ignores the fact that the second sentence includes the phrase “beyond a reasonable doubt.” There is no requirement that each sentence of the voir dire question include the phrase “beyond a reasonable doubt.” Appellant further complains that the second sentence is defective because it lacks the following italicized phrase, “You may find the defendant guilty if the testimony of the alleged victim establishes each element of the crime beyond a reasonable doubt.” Appellant’s Brief at 27. Appellant fails to cite any decision that requires this level of detail in a voir dire question; nor do we know of any. Even assuming that the voir dire question lacked sufficient detail, the court corrected this omission by charging the jury in its closing instructions that the Commonwealth had the burden of proving “each and every element of the crimes charged” beyond a reasonable doubt. Tr. at 619-20.
Slip op. at 8-10.
The Pennsylvania Supreme Court granted allocatur as to the following issue:
Did the Trial Court err in allowing the following voir dire question as it impermissibly sought to disclose what a juror’s present opinion would have been under certain facts that were to be developed in the case, was in the nature of a jury instruction and/or was an incorrect statement of law: “Under Pennsylvania law, the testimony of the alleged victim standing alone, if believed by you, is sufficient proof upon which to find the defendant guilty in a sexual assault case. Thus, you may find the defendant guilty if the testimony of the alleged victim convinces you beyond a reasonable doubt that the defendant is guilty. Would you be able to follow this principle of law?”
The Supreme Court directed the prothonotary to list Commonwealth v. Walker for oral argument at the same session as, and consecutive to, Commonwealth v. Smith.
For more information, contact Kevin McKeon or Dennis Whitaker.