Commonwealth v. Hunsberger

Justice SAYLOR,

concurring.

The majority initially frames the question presented as whether a defendant’s personal ability to hear all voir dire is “categorically mandate[d].” Majority Opinion at 33. I agree that it is not. I have difficulty, however, to the extent that the majority’s holding is framed in terms which may be taken as an approval of the practice of “sidebar” voir dire. See Majority Opinion at 3£M0 (“[W]e conclude that although a defendant has the clear right to participate in the jury selection process, that right is not compromised where, as here, the defendant, who was in the courtroom, was not present at sidebar where his counsel was questioning several venireper-sons outside the range of his hearing.”).

In my view, sidebar voir dire is a problematic practice which should not be routinized and, where necessary, should be handled with special care by trial judges and counsel.1 It seems evident to me at least that counsel confronted with a trial court’s practice of conducting “sidebar” voir dire should consult with the client to determine whether a timely objection should be interposed. To the extent that Appellant’s trial counsel failed to do so in this ease, I would find arguable merit in the claim of deficient stewardship. Accordingly, my support for the affirmance of the Superior Court’s order is based on the application of the prejudice criterion.

. As to the decisions pertaining to general sidebar conferences among a trial judge and counsel, I do not see the relevance here, since the practice of conducting voir dire out of the hearing of the defendant raises an entirely different set of concerns.