Commonwealth v. Hunsberger

Justice TODD,

concurring.

I join the Majority Opinion in all but one respect. No reason was provided for the necessity for the sidebar during voir dire in this case, and so we are not presently *42asked to review specific reasons. Therefore, in my view, it is inappropriate to approve putative justifications, as does the majority. See Majority Opinion at 40 (“[W]e recognize that a defendant’s right to participate in voir dire may be satisfied through procedures that both ensure the defendant’s right to choose and be tried by a fair and impartial jury, yet make accommodations for trial court efficiency and safety, and the comfort, protection, and respect for the jury pool.”). In particular, and for example, I question whether it would be permissible to exclude the defendant from jury selection simply for the jury’s “comfort”, or merely because it might be more efficient to do so. Rather, under the circumstances of this case, it is sufficient in my view to conclude that trial courts, while respecting the defendant’s right to participate in jury selection, have some flexibility to manage the process, but await the appropriate case to test the boundaries of that flexibility.