In People v Faulkner, 2007 NY Slip Op 00338, the voir dire was not fully transcribed--to the defendant's benefit. The Third Department noted that although verbatim transcription of jury selection may be waived, if a defendant is prejudiced by the lack of a full record, reversal is warranted. The Court stated that where a defendant alleges on appeal that a challenge for cause should have been granted, "courts must look to the full record of what the challenged juror said, not merely snippets of the voir dire."
In this case, the trial judge denied the defendant's challenge of a juror for cause. The juror in question had informed the court that he'd previously sat on a jury that had convicted members of the family of a co-defendant (who was being tried separately) and that his prior jury service "might affect him." Mr. Faulkner was also a member of that family, although Mr. Faulkner had a different last name. However, because of the limited transcription of the jury selection, it was unclear whether the defendant was initially identified to the jury as a member of the same family as his co-defendant, although that fact was later elicited at trial by the prosecutor.
The Court concluded that the judge's refusal was improper and constituted reversible error:
When potential jurors themselves state that they doubt or question their ability to be fair in the case, the trial judge should either probe further to elicit an unequivocal assurance that the juror can be fair and impartial or excuse the juror for cause...Here, the record does not disclose whether further questions were asked to assure that the juror could sit impartially in order to support denial of defendant's challenge for cause. Under such circumstances, reversal is required... Contrary to the People's argument, the court's denial of defendant's challenge for cause constituted reversible error because after that denial defendant exercised a peremptory challenge to the juror at issue and he and his codefendant exhausted their combined peremptory challenges before jury selection was completed... (Internal citations omitted).
This is an issue that I'd never really given much thought. My gut instinct is to have everything transcribed, but perhaps it might be good strategy to waive full transcription of voir dire. It seems like it's a roll of the dice though and that it could come back to bite you in some cases.
Anyone have any thoughts on the issue? I'd love to hear them.