Carlisle v. County of Nassau , 64 A.D.2d 15 ( 1978 )

OPINION OF THE COURT

Titone, J.

This civil action stems from an altercation between plaintiff and a detective employed by the defendant county. During the encounter, the detective shot plaintiff causing him to become a permanent paraplegic. Because of his being confined to a wheelchair, the trial court refused to permit plaintiff to be present during selection of the jury. According to the Justice in Part I (Derounian, J.), there was no purpose in having plaintiff present during the jury selection process "except a possible inflammation of the whole panel at this point.” On appeal, defendant states in its brief that plaintiff, having chosen competent counsel, waived whatever right he may have possessed to select or participate in the selection of a trial jury. I disagree with the reasoning of both the trial court and defendant.

Whatever may be the origin or true history of the jury trial, it is undeniable that since the Magna Carta, it has been an esteemed and inestimable privilege bestowed upon us by our English forebears. For centuries this great charter has been appealed to as the protector of the people against the encroachment of the prerogatives or despotisms of sovereigns. The English colonists who settled in America brought with them the admirable system of trial by jury as their birthright and inheritance (Flint Riv. Steamboat Co. v Foster, 5 Ga 194).

When the Federal Constitution was adopted, the right of trial by jury in criminal cases was the subject of an express guarantee (US Const, art III, § 2, cl 3). However, jury trial in civil cases was not mentioned therein. As a result, one of the strongest objections against such document as originally adopted was the want of an express provision securing the right to a jury trial in civil cases. This defect was remedied by the adoption of the Seventh Amendment which provides, inter alia, that in suits at common law, where the value of the controversy exceeds $20 "the right of trial by jury shall be preserved”.

Although the right to trial by jury contained in the Federal Constitution does not bind the States, or operate as a limitation upon them, similar provisions are found in all State constitutions and all have the same purpose (1 Hyatt, Trials, §§ 351, 353). Thus, in New York State, the Constitution provides, inter alia, that "[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2).

In my opinion, therefore, the fundamental constitutional right of a person to have a jury trial in certain civil cases includes therein the ancillary right to be present at all stages of such a trial, except deliberations of the jury (Leonard’s of Plainfield v Dybas, 130 NJL 135; Odum v Corn Prods. Refining Co., 173 Ill App 348 [parties interested cannot be excluded]; Ziegler v Funkhouser, 42 Ind App 428 [every litigant has a right to be present in person and be heard by counsel on the trial of his case]). Such right is basic to due process of law (Leonard’s of Plainfield v Dybas, supra).

A party to a civil action not in default is entitled to be present in the courtroom and be represented by counsel at all stages during the actual trial of the action. This does not mean that it is essential to the jurisdiction of the court that parties be present at all times during the trial, but simply that this right cannot be denied them (75 Am Jur 2d, Trial, § 51; cf. Leed v Robert Joshua, Ltd., 72 NYS2d 3; see, also, Gallavan v Hoffner, 154 Col 353; Purvis v Inter-County Tel. & Tel. Co., 203 So 2d 508 [Fla]; Pascarella v Pittsburgh Rys. Co., 389 Pa 8; Raper v Berrier, 246 NC 193; 88 CJS, Trial, § 40).

The basic right of a party to be present at all stages of a trial has even been held to apply to an examination before trial of a person within or without the State (Shepherd v Swatling, 36 Misc 2d 881 [Cooke, J., now Associate Judge of the Court of Appeals]).

Moreover, although voir dire examination of members of the jury panel is not considered part of the "trial of the facts”, generally speaking a trial begins when the veniremen are called for examination as to their qualifications (Pratt v Bishop, 257 NC 486; Vroman v Kempke, 34 Wis 2d 680; Matter of McIntyre, 78 ND 10; 75 Am Jur 2d Trial, § 3). The orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after the rendering of the verdict (Fillippon v Albion Vein Slate Co., 250 US 76, 81).¹

The suggestion of defendant that a party somehow forfeits his constitutional right to be present at any and all stages of the trial when represented by counsel has no basis either in law or in logic. Waiver of the right to be present at a particular stage of the trial must be strictly construed (Arrington v Robertson, 114 F2d 821). Although a party may not act in person at the trial of the action when represented by an attorney, except by consent of the court (CPLR 321, subd [a]), his right not only to be an interested and concerned observer of a proceeding which ultimately affects him, but to help plan and plot trial strategy is in no way denigrated by the presence of retained or assigned counsel. The attorney is not the alter ego of his client, but his representative or agent. As such he may not supplant the client either at his or the court’s unbridled pleasure.

That a party has the unqualified right to be present at the selection of a jury from the panel is evidenced from provisions of CPLR article 41. Under that article it is the party and not the attorney who may demand a trial by jury (CPLR 4102, subd [a]), may move to have a Judge present at the examination of the jurors (CPLR 4107), may object to the qualifications of an individual juror or the array (CPLR 4108), and may interpose both peremptory challenges and challenges for cause (CPLR 4109, 4110).

In its brief defendant contends that the absence of the plaintiff from the jury selection process was merely an irregularity and, in any event, that there was no shoyving of prejudice to plaintiff arising from such absence. However, what is before us at this time is not a mere absence from a portion of the jury selection process because of the inadvertence or design of a party but, rather, a baseless exclusion of the plaintiff by a Justice of the trial court. The right of challenge, a vital component of the voir dire of a jury panel, is an essential element of the constitutional right of trial by jury (2 Blackstone’s Commentaries [Jones ed], §§ 475, 476; 1 Hyatt, Trials, § 525). Thus, a litigant, through his counsel, has an unquestioned right to pass upon the acceptability of prospective jurors and insist that they be challenged peremptorily or for cause. The denial of that right in this case was prejudicial per se.²

The concept that a party’s presence at the voir dire of the jury panel is merely a privilege, and that the presence ripens into an absolute right during the testimonial stages of the trial, is also without merit. As experienced trial attorneys will attest, selection of a jury is a vital and often crucial aspect of any trial. It has been aptly described as the cornerstone of the right to a trial by an impartial jury (Melson v Dickson, 63 Ga 682). Thus, the determination which holds in effect that a party has a right to be present when he or his claim is judged by his peers, but not when the individual peers are being selected, is a patent anomaly.

Finally, a judicial determination that the physical appearance of a party, which he has not affected, may be the basis for precluding such party from any stage of a trial, is fraught with danger in its implications. My views on this facet of the case are best summarized in Florida Greyhound Lines v Jones (60 So 2d 396 [Fla]). In that action, involving damages resulting from a collision between a bus and an automobile, the defendant bus company challenged the propriety of the proceeding because the injured plaintiff was permitted to appear before the jury in a stretcher. In rejecting such challenge, the Supreme Court of Florida succinctly and cogently expressed what I believe to be the correct view (p 397): "One who institutes an action is entitled to be present when it is tried. That, we think, is a right that should not be tempered by the physical condition of the litigant. It would be strange, indeed, to promulgate a rule that a plaintiffs right to appear at his own trial would depend on his personal attractiveness, or that he could be excluded from the court room if he happened to be unsightly from injuries which he was trying to prove the defendant negligently caused. The appellee was properly present. If the use of stretcher and attendants was affected there would be occasion for the court to regulate the appearance to prevent the opposite party from being victimized and the jury from being deceived by the subterfuge, but no such deceit is claimed to have been practiced in this trial.”

In Bryant v Kansas City Ry. Co. (286 Mo 342), the Supreme Court of Missouri, in banc, held that a four-year-old plaintiff seeking to recover for injuries necessitating the amputation of his leg, had a right to remain in the courtroom during the trial even though he was too young to testify, and though he necessarily was using crutches, so long as no attempt was made to parade him before the jury. (See, also, Purvis v InterCounty Tel. & Tel. Co., 203 So 2d 508 [Fla], supra; cf. Dickson v Bober, 269 Minn 334.)

In the case at bar it is undenied that the plaintiffs injuries and paraplegic condition both unfortunately exist, and no subterfuge or deceit was practiced by plaintiff in that regard at the trial. Therefore, the amended judgment in favor of the defendant should be reversed and the action remanded for a new trial.

1 . Mr. Justice Hawkins, in his dissent, contends that the cases cited below are not applicable because they are not factually similar to this one. Significantly, however, he does not deny that each enunciates one of the following rules of law: (1) a party is entitled to be present at all stages of a civil trial (Leonard’s of Plainfield v Dybas; Leed v Robert Joshua, Ltd.; Gallavan v Hoffner; Purvis v Inter-County Tel. & Tel. Co.; Raper v Berrier); or (2) generally speaking, a trial begins when the veniremen are called as to their qualifications (Pratt v Bishop; Vroman v Kempke; Matter of McIntyre).

2 . In his dissent, Mr. Justice Hawkins relies on People v O’Keefe (281 App Div 409, affd 306 NY 619, cert den 347 US 989), to support his contention that exclusion of plaintiff from the entire jury selection process was at most "a mere defect or irregularity” in the organization of the jury. However, O’Keefe merely involves an interview by the trial court, without defendants’ counsel being present, of a juror already selected, because of information the trial court had received that, inter alia, she was acquainted with a person who had introduced her to a wife of one of the defendants. After the trial court informed defendants’ counsel of the interview, a decision was made by them not to have the juror excused. Although noting under the circumstances that the defect or irregularity was immaterial, the Appellate Division, Third Department, also stated (p 417): " 'No juror was permitted to sit to whom the defendant made any substantial objection”’ (emphasis supplied). In the case at bar, by being wrongfully excluded from the entire jury selection process, plaintiff personally was effectively foreclosed from raising any objection, either to the array or to individual jurors.