.2d 906 (1968), applying the harmless error rule to an instruction, in the absence of both counsel and the defendant, to continue deliberations.... (T)he very language of the second sentence of Rule 43 recognizes that in some circumstances a trial may proceed in the absence of the defendant. The validity of the Lewis dictum must be questioned in view of the subsequent adoption of Rule 43 and of the decision in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)."
If there is no reasonable possibility of prejudice from the error, it is deemed harmless. United States v. Giacalone, 588 F.2d 1158, 1165 (6th Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979); United States v. Brown, 571 F.2d 980, 987 (6th Cir. 1978); Blackwell v. Brewer, 562 F.2d 596, 599 (8th Cir. 1977); United States v. Rodriguez, 545 F.2d 829, 831 (2d Cir. 1976), cert. denied, 434 U.S. 819, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977); Wade v. United States, 441 F.2d 1046, 1050 (D.C.Cir.1971).
The facts in the instant case are clearly distinguishable from those in Crutcher. Alessandrello and Lacognata were not excluded from the entire voir dire ; they were present for all but one small portion of it. They saw each of the prospective jurors and heard each of them respond to questions about personal and general matters. Alessandrello and Lacognata recognize this case does not present the same circumstances as Crutcher. They point, however, to the following language in Crutcher :"It is true that as a general rule a violation of Rule 43 does not require reversal if the record affirmatively indicates beyond a reasonable doubt that the error did not affect the verdict.... However, the court in (Chapman v. United States, 386 U.S. 18, 23 (, 87 S.Ct. 824, 827, 17 L.Ed.2d 705) (1967))... noted that some of 'our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.' A defendant's right to be present while the jury is selected would appear to be such a right."
Id. at 244. Alessandrello and Lacognata argue that Crutcher thus set forth a rule requiring automatic reversal if the defendant is absent from any part of the jury impaneling, and they urge this court to adopt such a rule. We conclude that it would be unwarranted to apply the Crutcher rule to the facts of this case. We note that other courts, including the Second Circuit in a later case, United States v. Dioguardi, 428 F.2d 1033, cert. denied, 400 U.S. 825, 91 S.Ct. 50, 27 L.Ed.2d 54 (1970), have affirmed convictions despite the defendant's absence from part of voir dire when the circumstances showed that the error was harmless. Accordingly, we have concluded that the harmless error test for reviewing violations of Rule 43's requirement that the defendant be present at his jury's impaneling is applicable to this record.
The Fifth Circuit in Henderson v. United States, 419 F.2d 1277 (1970), also reviewed a case in which the defendant had been absent from a small portion of the jury selection. During his absence the defense counsel exercised his only challenge for cause, which was granted. The defendant was present for the rest of the challenge period. The court held that this violation of Rule 43 was harmless error.
United States v. Brown, 571 F.2d 980 (6th Cir. 1978), presented a slightly different problem under Rule 43. The trial judge held a conference in chambers to discuss the dismissal of a juror.15 The defendants were not present, but their attorneys were. The appellate court ruled that the defendants had a right under Rule 43 to be present at an in-chambers conference concerning the dismissal of a juror. However, after examining the transcript of the conference and noting that defense counsel had been zealous advocates of their clients' interests, the court concluded that there was no reasonable possibility of prejudice in the case, and affirmed the convictions. See United States v. Alper, supra at 1232.
"In the circumstances here presented the court was not in error in relying on the authority of defense counsel to act for their client.
Alessandrello and Lacognata advance a further argument. They contend that, even if a harmless error rule applies to violations of Rule 43, their convictions should be reversed on the alternative ground that their exclusion from part of the voir dire unduly impaired their right to exercise their peremptory challenges.16 They assert that they might have observed something about a prospective juror during the examination concerning exposure to pre-trial publicity which might have led them to make suggestions to their attorneys regarding peremptory strikes. They contend that their absence must give rise to a presumption of prejudice because the ephemeral nature of the information they might have gathered makes it impossible to assess the extent of actual prejudice they suffered.
Alessandrello and Lacognata do not in any way attack the impartiality of the jury. Their sole complaint is that they were deprived of some unspecifiable information which might have been helpful in the exercise of their peremptory challenges.17 In their view, this limitation in itself necessarily denied them a fair trial. We do not agree. While we do not approve of the voir dire procedure followed in this case, we do not believe it deprived the defendants of a fair trial.
In view of the record, showing that defense counsel agreed on the jury as selected as pointed out above, the statement of the dissent that the peremptory challenges were impermissibly controlled by the court is not supported by the record.
Although the presence of attorneys in the anteroom was not a waiver of the defendants' right to be present, their agreement to the jury as selected, after consultation with their clients, was a waiver as to all matters other than the absence of the defendants from the questioning in the anteroom. As pointed out above at note 17, the dissent has not been able to point to any unfairness manifested by any juror who served during any moment of the trial, even though all the statements made in the anteroom portion of the voir dire have been transcribed. See Document 38 in Crim. No. 79-269, D.N.J.
We are aware that other courts presented with claims that the defendants were deprived of some information which might have been helpful in the exercise of their peremptory challenges have reviewed the circumstances of the particular cases to determine if the convictions should be reversed. In all of the cases concerning jury impaneling cited above in section B, the defendants were absent during part of the jury selection, and thus were necessarily deprived of some information about prospective jurors which might have affected their suggestions regarding peremptory challenges. Yet, in each instance, the error was deemed harmless. In different contexts, limitations on information potentially useful for peremptory challenges have also been upheld. For example, in United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980), the district court refused to disclose the names, addresses, neighborhoods, religions, or ethnic backgrounds of the prospective jurors. The defendants, 14 blacks and one Hispanic, accused of distribution of massive quantities of narcotics, were allowed to inquire into each prospective juror's family history, occupation, educational background, and membership in organized groups or clubs.18 Despite the fact that peremptory challenges are often exercised on the basis of the "race, religion, (or) nationality" of a prospective juror, Swain v. Alabama, supra at note 16, 380 U.S. at 220, 85 S.Ct. at 836, the Second Circuit disagreed with the defendants' contention that the limitation on the information concerning religious and ethnic background impaired their exercise of peremptory challenges and deprived the defendants of a fair trial.19 Thus, the case law does not support the per se rule advanced by Alessandrello and Lacognata.
Furthermore, policy considerations also convince us that the defendants' peremptory challenge theory reaches too far. Their position is that the defendant's absence from any portion of the voir dire vitiates the whole proceeding because no one can ever know what "sudden impressions and unaccountable prejudices"20 he might have formed had he been present. In light of this view, the fact that an experienced trial attorney is present would be irrelevant because defendant and his counsel might form different impressions of the same individual. Under this theory, no matter how short the absence from the impaneling nor what the cause,21 nor how skilled the defendant's counsel, a new trial would be required. Although a per se rule would be easy of application, we do not believe it would further our interests in ensuring that defendants receive fair trials. By automatically requiring a new trial every time there was a miniscule infraction of the rule requiring presence at jury impaneling, even when the defendant presented only the most speculative claim of potential prejudice, we would be sacrificing considerable judicial resources without a corresponding increase in the actual fairness of trials. See Snyder v. Massachusetts