12 Chapter 12: Civil and Criminal Voir Dire 12 Chapter 12: Civil and Criminal Voir Dire
12.1 State v. Burns: Panel Voir Dire 12.1 State v. Burns: Panel Voir Dire
State of Connecticut v. Peter D. Burns
House, C. J., Loiselle, Bogdanski, Longo and Spbziale, Js.
Argued May 5
decision released July 26, 1977
*318 Jerrold H. Barnett, public defender, with whom were Richard Emanuel, assistant public defender, and, on the brief, Anthony V. DeM-ayo, public defender, for the appellant (defendant).
Ernest J. Diette, Jr., assistant state’s attorney, with whom, on the brief, were Arnold Marble, state’s attorney, and Edward J. Mullarbey, assistant state’s attorney, for the appellee (state).
Upon a trial to a jury, the defendant, Peter D. Burns, was found guilty as charged of the crimes of attempted rape in the first degree, in violation of General Statutes §§ 53a-49 and 53a-72, and burglary in the third degree, in violation of General Statutes § 53a-103; he was also found guilty of the lesser included crime of sexual contact in the third degree, in violation of General Statutes § 53a-80, having been charged with the crime of deviate sexual intercourse in the first degree, in violation of General Statutes § 53a-75. Judgment was rendered on the verdict, and the defendant has appealed.
The defendant bases his appeal from this judgment on three claims of error: (1) that the trial court erred in ruling that a “box voir dire”1 of prospective jurors be conducted; (2) that there was error in the admission of expert testimony concerning physical evidence which the state was unable to produce and which the defendant had not had an opportunity to test independently; and (3) that there was error in the court’s rulings on the allowance of extrinsic evidence regarding the defendant’s credibility.
*319From the evidence presented at trial, the jury could reasonably have found the following facts: A group of pleasure boats sailed from Long Island for a weekend cruise on July 4, 1974. The victim and her family were on the cruise as guests on Marilyn McKessey’s boat. The boats arrived in Branford late on the afternoon of July 4, and docked at Bruce and Johnson’s Marina. The McKessey family and their guests slept on the boat that evening and awoke at 4 or 4:15 a.m. on the morning of July 5 in order to get an early start. The victim, wearing shorts over her pajamas, walked to the women’s room at the marina, followed a moment later by her mother and Mrs. McKessey. While they were in the room, one of the women heard a car pull up outside. The victim left the women’s room alone and the other two women left a few minutes later. When Mrs. McKessey and the victim’s mother returned to the boat and discovered that the victim was not there, they and others began searching the area for her.
Upon leaving the washroom, the victim had been approached by a man, identified as the defendant, Peter Burns, who asked for help in carrying a lobster pot. As they began walking, he pulled her beside a car. She tried to run, but he pulled her down, causing her to cut her knee on the ground. He forcibly detained her and threatened to kill her unless she cooperated with his demands. He then pushed her into the car, and drove to an area where there were boats in drydock. He took her onto a boat, made her disrobe, and forced her to participate in certain sexual acts. Then he drove her back to the dock area, and she got out of the car and returned to her family. Several of the searchers ran after the car, and the victim’s father managed *320to reach in through the passenger side window and grab Burns’ arm before he accelerated, throwing the victim’s father away from the car.
The victim was taken to the hospital, where she was examined and treated. An internal examination revealed no physical evidence of a forcible rape. But a pierced earring was lodged in the upper part of one of her ears, and she had a cut on her nose and a knee abrasion.
I
The defendant’s first claim of error is that the court’s use of the “box voir dire” method of jury selection violated his “right to question each juror individually by counsel,” as guaranteed by article first, § 19, of the Connecticut constitution.2
In Childs v. Blesso, 158 Conn. 389, 260 A.2d 582, this court found no abuse of discretion in the use of a “box voir dire” where there was an opportunity to question privately those prospective jurors who expressed their reluctance to respond to questions in the presence of others. The Childs court determined that the applicable statute then in effect (General Statutes §51-240),3 which gave litigants *321the right to question each juror personally or by counsel, was not violated by the lower court, since the defendants were allowed to direct their questions to individual jurors.
There is no indication that the passage of the relevant part of the 1972 amendment to article first, § 19, was intended to accomplish anything more than to assure that the “right to question each juror individually by counsel” would be “inviolate.”4 Conn. Const, art. I, § 19. In a recent case dealing with voir dire generally, this court expressed its continuing approval of the rule stated in Childs, vesting the trial court with broad discretion in the examination of jurors. State v. Anthony, 172 Conn. 172, 174, 374 A.2d 156. The Anthony case was decided four years after the adoption of the constitutional amendment, and, by restating the Childs *322rule, we recognized that the constitutional guarantee is satisfied by the discretionary use of a “box voir dire.”
In addition to the attack on constitutional grounds, the defendant contends that the trial court abused its discretion because, given the sensitive nature of the issues involved in this case, a “box voir dire” was particularly inappropriate. The grounds presented to the trial judge in support of the defendant’s objection to the method of jury selection, however, were that it was contrary to the intent and wording of the constitutional provision and that prospective jurors might be influenced by the answers of others. As the defendant concedes in his brief, there was no effort made to alert the judge to potentially sensitive questions which might be raised, nor was there any request to question potential jurors privately on certain issues. “This court is not bound to consider claimed errors on the part of the trial court unless it appears that the question was distinctly raised at the trial and was ruled upon and decided by the court adversely to the appellant’s claim. Practice Book §§249, 652; State v. Simms, 170 Conn. 206, 208, 365 A.2d 821.” State v. Holmquist, 173 Conn. 140, 146, 376 A.2d 111.
On the basis of prior rulings of this court, and the failure of the defendant to raise in his objection the inappropriateness of a “box voir dire” in this particular case, there has been no showing that the judge abused his discretion in permitting this method of jury selection.
II
The defendant’s second claim of error is that his right of confrontation and right to due process, guaranteed by the sixth, fifth and fourteenth amend*323ments to the United States constitution and article first, § 8, of the Connecticut constitution, were violated by the state’s nonproduction of physical evidence and by the admission of government expert testimony concerning that evidence. The evidence involved consisted of articles of clothing belonging to both the defendant and the victim, as well as hair samples taken from the boat and from the defendant and the victim for comparison purposes. These items were obtained by the Branford police, sent by courier to the state laboratory, where they were analyzed by the chief state toxicologist, Abraham Stolman, and then returned to the Branford police. The evidence was left on a table in a locked office, and that was the last time anyone saw it. Although the police denied deliberately destroying or secreting the evidence, they were unable to account for its loss.
Stolman testified that he conducted microscopic examination of the hair samples, and both chemical and microscopic examination of the clothing. He stated that, based on comparisons of the hair samples submitted, the two hair samples obtained from the boat matched samples of the victim’s pubic hair and the defendant’s beard hair. He also testified that he found semen stains on the inside of the defendant’s pants and on the inside of the victim’s pajamas and shorts. On cross-examination, Stol-man admitted that the fact that hairs match does not necessarily prove that they come from the same person. He stated that there was no way to determine whose semen was present on the inside of the articles of clothing; he did acknowledge, however, that a blood typing test could have determined whether all three stains came from one or more persons and whether the blood type of the stains *324matched the blood type of any particular individual. No such tests were performed, however. The toxicological report was admitted as a full exhibit over the defendant’s objection.
The defendant does not appear to contest the fact that the items tested by Stolman were the same as those obtained by the Branford police. Rather, the focus of the defendant’s claim is on the state’s failure to perform blood typing tests on the seminal stains and on the unavailability of the items for independent tests. It is significant in this regard that, although the loss of the evidence was not reported until shortly before the trial, at no time between the time of his arrest and the date of trial did the defendant either request that a blood typing test be performed or seek any independent toxicological tests.
The applicable case law does not support the defendant’s contention that he was deprived of his right of confrontation. He had ample opportunity to cross-examine the witness, and it is this right which forms the core of the confrontation clause. California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed. 2d 489; United States v. Williams, 447 F.2d 1285, 1289-90 (5th Cir.) (en banc). The overwhelming weight of authority is that, even where the state fails to produce the physical evidence which is the subject of the witness’ testimony, the right of confrontation is satisfied by an opportunity for full cross-examination. United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir.); United States v. Sewar, 468 F.2d 236, 238 (9th Cir.), cert. denied, 410 U.S. 916, 93 S. Ct. 972, 35 L. Ed. 2d 278; United States v. Williams, supra; People v. Triplett, *32568 Mich. App. 531, 540, 243 N.W.2d 665; People v. Eddington, 53 Mich. App. 200, 205, 218 N.W.2d 831; see also United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537.
The defendant, acknowledging that his confrontation rights may have been satisfied by cross-examination of the state’s expert, asserts that a claim of this nature, concerning the loss of evidence, may be more properly grounded in the due process clause of the fifth amendment. United States v. Herndon, supra. On the facts presented, however, the requirements of due process appear to have been met. There has been no showing that access to the lost evidence would have materially aided Burns’ defense. This is buttressed by the fact that, up to the time of trial, when the loss was revealed, the defendant never requested access to the items in question, nor did he request that blood typing tests be performed. Further, since the defendant does not deny that the state’s tests were actually performed on the missing items, contradictory results of independent testing would merely go to the weight accorded the testimony of Stolman. It is crucial to remember that the defendant admitted being on the boat and kissing and caressing the victim. He was convicted of attempted rape in the first degree (General Statutes §§ 53a-49, 53a-72) and sexual contact, third degree (General Statutes § 53a-80). Neither of these crimes requires proof that the parties ever disrobed or that intercourse actually occurred. Thus, even if the defendant had produced test results proving that the pubic hairs were not the victim’s or that the semen stains did not correspond to Peter Burns’ blood type, there is no indication that this would have strengthened Burns’ defense.
*326The admission of expert testimony under these circumstances did not violate due process, nor did it deprive the defendant of his right of confrontation.
Ill
The final claim on appeal is that the trial court erred in allowing the state to cross-examine the defendant on an arguably collateral matter and to impeach his testimony with extrinsic evidence, and that it erred still further in limiting his right to contradict.
The defendant was asked, during the course of the state’s cross-examination, whether he had been involved in a “confrontation” or “disagreement” with anyone from the McKessey boat on the evening of July 4, 1974; he denied any knowledge of such an incident. He admitted that in July, 1974, while in the presence of Attorney Alan E. Silver, he did have a conversation with a Sergeant John Calvert at the Eighth Circuit Court, but denied telling Sergeant Calvert about a confrontation with a male member of the McKessey party.
The state was permitted to call Sergeant Calvert as a rebuttal witness; however, the court explicitly stated that the sergeant’s testimony was being admitted for impeachment purposes only. The testimony was admissible on the question of whether Burns had ever told Sergeant Calvert about such an incident, but not on whether the incident actually took place.
On surrebuttal, the defendant was permitted to call Attorney Silver to testify regarding his recollections of the conversation between Burns and Sergeant Calvert. The defendant was also given *327an opportunity to explain the apparent inconsistency. The court, however, refused to allow the defendant to introduce the testimony of a Mr. Young regarding the confrontation which actually occurred on the evening of July 4. This testimony was excluded not only because Young was in violation of the court’s sequestration order, but, more significantly, because the testimony was not relevant to the question of whether Burns had ever made the alleged statement to Sergeant Calvert.
When a party has made a prior statement inconsistent with his testimony at trial, the statement may be received as an admission and treated as relevant evidence upon the fact issues. McCormick, Evidence (2d Ed.) § 37, p. 74; Cicero v. E.B.K., Inc., 166 Conn. 490, 496, 352 A.2d 309. Such a statement may also be received as a prior inconsistent statement, and given the same status as a prior statement by a witness who is not a party; in such a case it can be used for impeachment purposes only. McCormick, supra; Worden v. Francis, 153 Conn. 578, 582, 219 A.2d 442. The trial court ruled that Burns’ statement to Sergeant Calvert was being admitted into evidence only as a prior inconsistent statement; consequently, it could be used for impeachment but not as evidence of what actually occurred on the night of July 4, 1974.
Ordinarily, extrinsic evidence of prior inconsistent statements cannot be used to contradict testimony. This rule is strictly observed when the testimony relates to a collateral matter; extrinsic evidence may be admitted, however, where the subject matter of the testimony is relevant to the issues of the case. McCormick, supra, § 36, pp. 70-71. The trial court traditionally has wide discretion to deter*328mine what is relevant in a particular case. State v. Villafane, 171 Conn. 644, 671, 372 A.2d 82. Here, the judge was well within his discretion in deciding that Burns’ conversation with Sergeant Calvert was sufficiently relevant to allow the introduction of extrinsic evidence. See State v. Villafane, supra.
Once extrinsic evidence was admitted, the defendant argues that the court erred in refusing to permit Young to testify. Yet, when asked during the trial what Young could say concerning Burns’ conversation with Calvert, the response of defense counsel was: “Nothing.” Because the judge had explicitly limited the issue to what was said by Burns at the Eighth Circuit Court, rather than to what had happened on July 4, Young’s testimony, which would have been limited to the July 4 incident, was justifiably excluded.
There is no error.
In this opinion the other judges concurred.
12.2 Rozbicki v. Huybrechts: Right to be Present 12.2 Rozbicki v. Huybrechts: Right to be Present
Zbigniew S. Rozbicki v. Helen Huybrechts
Peters, C. J., Shea, Callahan, Glass and Borden, Js.
Argued February 21
decision released April 16, 1991
Paul W. Summers, with whom, on the brief, was John P. Febbroriello, for the appellant (defendant).
Wesley W. Horton, with whom was Karen L. Murdoch, legal intern, for the appellee (plaintiff).
This appeal concerns the state constitutional right of a party to a civil action to be present during the voir dire of potential jurors. The plaintiff, Zbigniew S. Rozbicki, who is a practicing attorney, brought an action to recover legal fees allegedly due from the defendant, Helen Huybrechts. The defendant counterclaimed for loss of profits arising out of the sale of her residence to the plaintiff and for recovery of costs arising out of a related foreclosure action. After a court order by the trial court, Moraghan, J., setting a date for jury selection to commence, the plaintiff moved for a continuance because of his professional responsibilities elsewhere in the state. Upon denial of the plaintiffs motion by the trial court, Dranginis, J., jury selection went forward in his absence, although the trial itself was continued until he could be present. The jury ultimately returned a verdict for the defendant on both the complaint and the counterclaim and awarded the defendant $8020.60 in damages. The trial court, Moraghan, J., denied the plaintiffs motions to set aside the verdict and rendered judgment for the defendant.
On the plaintiffs appeal, the Appellate Court reversed the trial court’s judgment and ordered a new trial on the ground that the trial court’s denial of the plaintiff’s motion for a continuance had violated the plaintiff’s state constitutional right to be present for voir dire. Rozbicki v. Huybrechts, 22 Conn. App. 131, 136, 576 A.2d 178 (1990). We granted the defendant’s petition for certification to appeal from the Appellate Court; Rozbicki v. Huybrechts, 216 Conn. 812, 580 A.2d 59 (1990); limited to the following issue: “Does the plaintiff’s absence from voir dire in a civil trial require a new trial absent a showing of prejudice?” In the circumstances of this case, because the burden of disproving prejudice must be borne by the defendant and that burden has not been met, we conclude that a new trial is required. Accordingly, we affirm the judgment of the Appellate Court.
*388The certified issue arises out of the following procedural facts, which are not in dispute. On December 14, 1988, the trial court, Moraghan, J., ordered that jury-selection for the plaintiff’s lawsuit begin on January 3, 1989. On December 16, 1988, the plaintiff, asserting a state constitutional right to be present for voir dire; Conn. Const., art. 1, § 19; moved to postpone jury selection until he could be present.
When the motion for continuance was argued, on January 3, 1989, the plaintiff’s counsel informed the trial court, Dranginis, J., that the plaintiff’s absence on that date was involuntary because the plaintiff was representing a client on trial in West Hartford in a proceeding that he had been ordered to begin several weeks earlier. The plaintiff’s counsel argued that the plaintiff wished to be present for voir dire because he had lived in the Litchfield area most of his life, had practiced law there for twenty years, and might well recognize among prospective jurors someone with whom he had had previous adversarial dealings of some sort. The trial court acknowledged that the plaintiff had a constitutional right to be present, but concluded that he had waived it. After completion of jury selection in the plaintiffs absence, the trial court continued further proceedings to enable the plaintiff to be present for trial. At the trial, which the plaintiff attended, he did not object to any of the jurors who had been selected.
At the conclusion of the trial, the jury returned a defendant’s verdict on both the complaint and the counterclaim, and the trial court denied the plaintiff’s motions to set aside the verdict. On appeal, the Appellate Court reversed the judgrpent of the trial court, holding that: (1) the plaintiffs right to a jury trial under article first, § 19 of the constitution of Connecticut encompassed the right to be present during voir dire; (2) the plaintiff’s absence, in obedience to a prior *389express judicial order to represent a client elsewhere in the state, was involuntary and thus did not constitute a waiver of that right; (3) the trial court’s denial of the plaintiff’s motion for a continuance violated his right to be present; and (4) the plaintiff was therefore entitled to a new trial. Rozbicki v. Huybrechts, supra, 22 Conn. App. 133-36.
On appeal to this court, after our grant of certification, the principal issue is the relationship between the right to be present at voir dire and the proof of prejudice attendant to a violation of that right. The defendant maintains, contrary to the view of the Appellate Court, that the plaintiff is not entitled to a new trial without demonstrating how his absence during voir dire prejudiced the outcome of the trial that he attended. Such a burden of proving prejudice is appropriate, according to the defendant, because the Appellate Court was mistaken in concluding that the plaintiff’s right to be present was constitutional in nature. The defendant argues that Connecticut’s constitution extends to civil litigants only the right to question prospective jurors by counsel, not the right to be present for jury selection. The plaintiff counters that this court should not examine the nature of the right violated because that issue is beyond the scope of the certified question. Since the Appellate Court determined that the right to be present is constitutional in origin, the plaintiff further maintains that the burden should be placed upon the defendant, who is seeking to uphold the jury’s verdict, to prove that the plaintiff was not prejudiced by his absence. We agree with the defendant that the issue of the burden of proof concerning prejudice cannot be decided without a determination of the nature of the underlying right that is sought to be vindicated, but we agree with the plaintiff that the right to be present for jury selection is a *390constitutional right, and accordingly that the burden of disproving prejudice must be assigned to the defendant, as the Appellate Court held.
I
Our analysis therefore begins with an examination of the nature of a party’s right to be present at jury selection. That right has its origin in the text of article first, § 19 of the constitution of Connecticut. As amended by article four of the amendments to the constitution, adopted in 1972, the section provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”
This court has long recognized that a party’s constitutional right to a civil jury trial encompasses the right to be present in the court during all phases of the trial, including proceedings prior to the trial on the merits of the case. We have assumed that a plaintiff in a personal injury action has a personal right to be present during voir dire, so long as he does not “disturb the orderly business of the court.” Antel v. Poli, 100 Conn. 64, 69, 123 A. 272 (1923). We have held that a party to a fraud action has a right to be present at a deposition, and not merely to be represented by counsel. Anderson v. Snyder, 91 Conn. 404, 408, 99 A. 1032 (1917). We have explained the importance of the personal presence of the party by noting that “[i]n many cases, the cross-examining attorney cannot anticipate, no matter how thorough his preparation, the developments in the examination of a witness. He cannot know *391all that his client knows. Oftentimes it is essential for the proper presentation of the case to have the client at hand ready to prompt the cross-examiner and to respond to his inquiries.” Id.
These cases demonstrate the significant role that a party may play at voir dire. One of the principal purposes of voir dire is the discovery of interests, such as family ties, employment relationships, or financial interests, that may predispose a prospective juror to decide a case on legally irrelevant grounds. See, e.g., McCarten v. Connecticut Co., 103 Conn. 537, 542-44, 131 A. 505 (1925); Quinebaug Bank v. Leavens, 20 Conn. 87, 89 (1849). As the Appellate Court observed, it is not unlikely that a party may recognize, during voir dire, a potentially prejudicial relationship that might pass unnoticed by his counsel. Rozbicki v. Huybrechts, supra, 22 Conn. App. 135.
The history of the 1972 amendment of article first, § 19 supports the continuing validity of our earlier judicial determination that the jury trial provision of the state constitution guarantees a civil litigant the right to be present during voir dire. Prior to the adoption of the fourth amendment to Connecticut’s constitution, article first, § 19 provided only that “[t]he right of trial by jury shall remain inviolate.” In 1971, in response to the increasing congestion of court dockets and mounting court costs, the legislature proposed a constitutional amendment to permit mandatory six-person juries in place of twelve-person juries in certain circumstances. See 14 H.R. Proc., Pt. 5, 1971 Sess., pp. 2366-70; 14 S. Proc., Pt. 5, 1971 Sess., pp. 1984-88. In order to preserve what the legislature perceived as the fundamental character of jury trials, however, the proposed amendment contained two provisions guaranteeing that parties would continue to have certain rights, previously granted only by statute, regarding *392the selection of individual jurors.1 As adopted by the electors of Connecticut in 1972, the amendment constitutionalized the right of the parties “to challenge jurors peremptorily” and the right “to question each juror individually by counsel.”2
The distinction made in the two jury selection provisions adopted in 1972 serves to illuminate the rights conferred. The penultimate sentence of article first, § 19 provides that “[i]n all civil . . . actions . . . the parties shall have the right to challenge jurors peremptorily,” while the final sentence provides that “[t]he *393right to question each juror individually by counsel shall be inviolate.” (Emphasis added.) The plain language of article first, § 19 refutes the contention of the defendant in this case that the jury selection provisions confer only on counsel, and not on the parties, the right to conduct voir dire and to challenge prospective jurors peremptorily. The constitutional right of the parties to have counsel conduct individual examinations of prospective jurors in no way restricts the grant of the personal prerogative in the preceding sentence.3
The conclusion that the right of a party to be present during voir dire in a civil lawsuit is a constitutional right does not, in principle, end the inquiry. Like the right to a jury trial itself, the right to be present at voir dire can be waived. Indeed, the right to be present will be deemed to have been waived if not specifically asserted, just as the right to a civil jury trial is deemed waived if not claimed within the time constraints specified in General Statutes § 52-215. See Leahey v. Heasley, 127 Conn. 332, 336, 16 A.2d 609 (1940); cf. State v. Perrella, 144 Conn. 228, 231-32, 129 A.2d 226 (1957) (statute deeming the right to trial by jury of twelve in a criminal matter waived unless claimed in timely manner held to be constitutional). In the context of criminal trials, a defendant may waive his constitutional right to be present during voir dire either by his mis*394conduct or by Ms “voluntary and deliberate absence from the trial without good cause.” State v. Drakeford, 202 Conn. 75, 79, 519 A.2d 1194 (1987). “[T]he right to be present . . . may be lost by consent, waiver or misconduct. . . . Waiver need not be express. It may be implied from the totality of acts or conduct of a defendant.” (Citation omitted.) Id. These principles apply with equal force in civil litigation.
In the present case, the Appellate Court specifically determined that the plaintiff had not waived his right to be present because his absence was involuntary. Rozbicki v. Huybrechts, supra, 22 Conn. App. 136. Because that determination is not encompassed within the scope of the question certified for review, we will accept it as given for the purposes of this appeal.
We hold, accordingly, that the plaintiff in this case, by virtue of the provision of article first, § 19 of the constitution of Connecticut, had a constitutional right to be present during the voir dire of prospective jurors for his trial, that he properly asserted that right through his counsel, that he did not waive that right by his conduct, and that the trial court violated that right by ordering his attorney to conduct jury selection in his absence. We turn, then, to the question of the effect of the denial of that right.
II
The appropriate remedy for the violation of a constitutional right depends, at least in part, on the nature of the right violated. In order to determine wMch party should bear the burden of proving prejudice, or the lack thereof, resulting from the violation of the plaintiffs right to be present during voir dire, it is useful to recall why we have voir dire. Voir dire serves two generally recognized purposes: it permits the court to determine whether a particular individual is qualified to act as a *395juror, and it allows each party to determine whether to exercise peremptory challenges to jurors not disqualified for cause. State v. Dolphin, 203 Conn. 506, 512, 525 A.2d 509 (1987); Duffy v. Carroll, 137 Conn. 51, 56, 75 A.2d 33 (1950). Although a trial court has broad discretion to determine the appropriate scope of inquiry during voir dire, this court has repeatedly held that the litigants are entitled to as much latitude in such examinations as is necessary fairly to accomplish both purposes. State v. Dolphin, supra; State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).
In prior decisions regarding the scope of questions permitted on voir dire, we have not required the party whose right to voir dire has been impaired to prove how he was prejudiced. When a trial court improperly refused to permit a defendant to engage in a line of questioning intended to elicit information regarding a prospective juror’s sympathies in a personal injury action, for instance, we concluded that it would be impossible for that defendant to prove that he could have elicited information that would have justified a challenge for cause or suggested a peremptory challenge. Lamb v. Burns, 202 Conn. 158, 164-65, 520 A.2d 190 (1987); cf. Burger & Burger, Inc. v. Murren, 202 Conn. 660, 668, 522 A.2d 812 (1987) (stating in dicta that certain kinds of harm are virtually impossible to prove, and that such difficulties, when arising in contexts that are “fundamental” in our adversarial system, “may well require us to place the burden of disproving prejudice on the party who has been advantaged” by an erroneous ruling).
This line of cases furnishes an appropriate analogy to the issue before us. We are persuaded that there is no basis for a distinction in remedy between the denial of the right to ask specific questions and the denial of the right to be present in person. By virtue of his *396absence from voir dire, the plaintiff was foreclosed from proving what associations might have been stirred in his memory, what questions he might have wished to ask to follow up particular responses by prospective jurors, or indeed, whether he might have wished to exercise a peremptory challenge because he sensed a personal antipathy in the responses of a prospective juror.4 We conclude, accordingly, that the party advantaged by the trial court’s improper ruling must bear the burden of proving, by a preponderance of the evidence, that the ruling was not prejudicial. Because the defendant in this case has produced no evidence on the question of prejudice, she has not met her burden of proof and the plaintiff is entitled to a new trial.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.