State v. Irby, 170 Wash. 2d 874

Irby was charged with first degree burglary and first degree murder with aggravating circumstances (or, alternatively, first degree felony murder).
Jury selection began January 2, 2007; jurors were sworn, filled questionnaires, and a trial judge emailed to excise certain jurors.
Irby was in custody and absent during the initial email decision to excuse jurors; subsequent in-court voir dire occurred with Irby present.
Seven jurors identified in the email were excused (7, 17, 23, 36, 42, 59, 77) before voir dire in open court.
Jury selection ultimately proceeded to 37 jurors, resulting in Irby’s conviction on the challenged charges.
Division One of the Court of Appeals reversed based on violation of Irby’s right to be present; the Supreme Court granted review.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Irby’s right to be present at jury voir dire was violated.	Irby’s absence during excusal of jurors violated his voir dire right.	The excusal process was administrative; absence did not impair defense.	Yes, the right to be present was violated.
Whether the violation was harmless beyond a reasonable doubt.	The excused jurors could have sat on the jury; removal affected fairness.	Removals were administrative; no prejudice shown where jurors did not serve.	No; the error was not harmless beyond a reasonable doubt.
Whether article I, section 22 independently protects Irby’s presence at jury selection.	State constitution guarantees presence at stages affecting substantial rights.	Right should be interpreted consistently with due process and limited to critical stages.	Both federal due process and state constitution protect presence at voir dire; violations found.
Whether the excusal of jurors for hardship unrelated to the case is permissible without presence.	Hardship excuses should be scrutinized only if tied to the case.	Administrative hardship excusals are permissible without defendant’s presence.	Permissible as administrative matter; harmless error analysis applied.

Gomez v. United States, 490 U.S. 858 (1989) (jury selection is a critical stage; defendant has right to be present)
Snyder v. Massachusetts, 291 U.S. 97 (1934) (presence relates to ability to defend; substantial relation required)
Rushen v. Spain, 464 U.S. 114 (1983) (right to be present at trial’s critical stages; due process concerns)
State v. Benn, 134 Wn.2d 868 (1998) (due process and presence; harmless error framework adopted)
State v. Rice, 120 Wn.2d 549 (1993) (jury-selection-related presence and trial procedures context)